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Full-Text Articles in Law
Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan
Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan
Robert Kagan
Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …
Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova
Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova
Saule T. Omarova
The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …
Dirty Debts Sold Dirt Cheap, Dalie Jimenez
Dirty Debts Sold Dirt Cheap, Dalie Jimenez
Dalie Jimenez
More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Robert C. Hockett
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Henry H. Perritt, Jr.
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Jennifer Jackson
We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …
The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy
The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy
Patricia A. McCoy
Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") as a positive mandate for banks and thrifts to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. When Congress enacted CRA, it was inconceivable that LMI neighborhoods might eventually receive too much credit in the form of abusive mortgages. However, by the late 1990s, predatory mortgages- exploitative high-cost loans to gullible borrowers-were ravaging the inner cities. We address the question: given the surge in predatory lending, how should CRA respond? CRA and federal subsidies to regulated lenders can create perverse incentives for lenders to engage …
The Legitimacy Of Crimmigration Law, Juliet P. Stumpf
The Legitimacy Of Crimmigration Law, Juliet P. Stumpf
Juliet P Stumpf
Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …
How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn
How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn
Michael E Lewyn
Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.
“Smut And Nothing But”: The Fcc, Indecency, And Regulatory Transformations In The Shadows, Lili Levi
“Smut And Nothing But”: The Fcc, Indecency, And Regulatory Transformations In The Shadows, Lili Levi
Lili Levi
For almost a century, American broadcasting has received a lesser degree of constitutional protection than the print medium. Although many of the FCC’s regulations in “the public interest” have been upheld against First Amendment challenge on the ground that broadcasting is exceptional, the traditional reasons given for such exceptionalism – scarcity and pervasiveness – have become increasingly careworn. Fighting that consensus, the FCC has aggressively pursued the regulation of indecency on radio and television since 2003. When the FCC’s enhanced indecency prohibitions swept up U2 front-man Bono’s fleeting expletive on a music awards show, broadcasters finally thought they had found …
The Implausibility Of Secrecy, Mark Fenster
The Implausibility Of Secrecy, Mark Fenster
Mark Fenster
Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …
Introduction: Law, Torture, And The “Task Of The Good Lawyer” – Mukasey Agonistes , Daniel Kanstroom
Introduction: Law, Torture, And The “Task Of The Good Lawyer” – Mukasey Agonistes , Daniel Kanstroom
Daniel Kanstroom
Following September 11, 2001, there was a challenge to the role of law as a regulator of military action and executive power. Government lawyers produced legal interpretations designed to authorize, legitimize, and facilitate interrogation tactics widely considered to be illegal. This raises a fundamental question: how should law respond to such flawed interpretation and its consequences, even if the ends might have seemed necessary or just? This Symposium examines deep tensions between competing visions of the rule of law and the role of lawyers. Spurred by a controversy over the selection of then-Attorney General Michael Mukasey as commencement speaker, the …
Clear The Air: Lopsided Journalism In Public Policy Debates, Zygmunt J.B. Plater
Clear The Air: Lopsided Journalism In Public Policy Debates, Zygmunt J.B. Plater
Zygmunt J.B. Plater
A point-counterpoint to Professor Plater's article, "Law and the Fourth Estate: Endangered Nature, the Press, and the Dicey Game of Democratic Governance, Environmental Law, 32 (2002): 1-36.
Combining Forces: The Joint Defense Agreement In Civil Litigation, Stephen Messer
Combining Forces: The Joint Defense Agreement In Civil Litigation, Stephen Messer
Stephen Messer
From day one of law school aspiring lawyers are taught that information shared in confidence between a lawyer and his client is confidential. Although all lawyers are well aware of this, surprisingly few know that conversations with a client and someone else's lawyer can also be privileged. This is what happens when a joint defense agreement is created; Joint defense agreements extend the attorney client privilege throughout the entire defense camp in cases where multiple defendants and their counsel have common interests in the litigation. This often overlooked, yet highly effective legal strategy may serve as a valuable tool for …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Patrick McKinley Brennan
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Lawsuits, Daniel Kanstroom, Helena Goldstein