Law Commons^™

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Fearing The Bogeyman: How The Legal System's Overreaction To Perceived Danger Threatens Families And Children, David Pimentel

David Pimentel

In the last generation, American parenting norms have shifted dramatically, reflecting a near obsession with child safety and especially the risk of stranger abduction. A growing body of literature shows, however, that the threats to children are more imagined than real, and that the effort to protect children from these “bogeymen” may be doing more harm than good. Advocates of “Free-Range” parenting argue that giving children a long leash can help them learn responsibility, explore the world outside, get physical exercise, and develop self-sufficiency. But the State, usually acting through Child Protective Services (CPS), is likely to second-guess parents’ judgments …

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors. …

Demon At The Back Door: Rise Of The Mexican Drug Cartels, Oliver T. Beatty

Oliver T Beatty

This article addresses the rise of the violent Mexican drug cartels and searches within the legislative and law enforcement toolbox on how to dethrone the epidemic of violence on the border. The Mexican drug cartels rose from the ashes and structural framework of the Colombian cocaine cartels which gave these new criminal empires their routes, connections, and ease at taking over Pablo Escobar’s monopoly on the drug trafficking game. In addressing the origins of the cartels this article explores the trajectory of cocaine from imported medical remedy to criminalized substance. Additionally this article explores how the Italian mafia was dismantled …

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

Bargaining In The Shadow Of Big Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement—based on their forecast of the outcome at trial and associated costs. Lawyers bargaining in the shadow of trial have traditionally relied on their knowledge of precedent, intuition, and previous interactions with the presiding judge and opposing counsel to forecast trial outcomes and litigation costs. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools …

Lawyering In The Shadow Of Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement – based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in …

Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance For Business Entities, Eric C. Chaffee

Eric C. Chaffee

This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition—i.e., the unconscious recognition that a specific action is good, evil, or morally neutral—may have a useful role to play in making legal compliance decisions for business entities.

Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized role of intuition in moral decision making …

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order to …

Expanding The Inner Circle: How Welfarist Norms Escape In-Groups, Alexander D. Jakle

Alexander D. Jakle

I explore the influence of social mechanisms by which welfarist norms come to be appropriate by those outside the social group for which they were developed, and how they lead to patterned deviance from the law. Drawing on literature from law and society, law and economics, political science, social theory, and other fields, I use original research from a qualitative study of amateur baseball players to analyze the interplay between norms, groups, and deviance. Relationships with agents is widespread, despite being against both NCAA Bylaws and most players economic incentives. To explain this seemingly irrational pattern of rule-breaking, I argue …

The Lies We Tell Ourselves: Confidence, Self-Deception, And Their Effects On "Rationality" And Deviance, Alexander D. Jakle

Alexander D. Jakle

Law and economics suggests that we behave in ways that maximize our preferences, but what if we are deceived about what we want or how best to get it? This article explores how the psychology of self-deception can be marshaled to explain unexpected patterns of law-breaking and deviance. Using original research from a qualitative case study of amateur NCAA baseball players, I examine the ways in which self-deception leads us to systematically reinterpret and process information, fundamentally changing how we weigh the costs and benefits associated with breaking rules. Our preferences are inextricably interwoven with our identities, and we go …

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

Negative Externalities And Subprime Auto Financing: Time To Let The Hanging Paragraph Go(2), Chunlin Leonhard

Chunlin Leonhard

Economists generally agree that when private transactions generate negative externalities (i.e. unintended harmful byproduct), government intervention is potentially necessary. Negative externalities are considered socially inefficient because they destroy market supply and demand equilibrium. The existence of negative externalities is therefore one of those rare occasions when government intervention in private transactions is justified. It follows that when the government does choose to intervene, its goal should be to remedy, not to encourage, negative externalities. This article identifies one bankruptcy rule, commonly known as the Hanging Paragraph in the Bankruptcy Code, 11 U.S.C. § 1325(a)(9), that violates the basic principle of …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …

Contracting I The -Modern Woerld, Enrico Baffi

enrico baffi

In this paper I want to show that the change that we observe in the way of contracting do not depend by the market powers that firms would have obtained, but it is a phenomenon due to the change in relative costs of activities. There are activities that are labor intensive that must be abandoned in favor of activities that capital intensive, and there are activities that are time consuming that the people do not want to bea, as reading all the contract clauses of a standard form contract, that determine the necessity, probably, if there is not a state …

Contracting In Modern World, Enrico Baffi

enrico baffi

In this paper I try explore some of the basic features of modern mass contracting. In my opinion, there are basically four characteristics of modern mass contracting: a)he reduced negotiations; b) the dissemination of standard form contracts; c) the presence of abusive clauses; d) and the recapitulation of the contract and its execution in a single act of stipulation. All the changes are the consequences in the changes of relative costs of activities: a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalized contracts; …

Mental Budget And Inefficient Clauses: A Lesson From Behavioral Law Nand Economics, Enrico Baffi

enrico baffi

This paper is an attempt to highlight how clauses, which are traditionally considered to be inefficient, may actually be desired by consumers. This anomaly originates in the fact that each individual builds a mental budget by dividing the money he has among the needs he intends to satisfy. According to consumers’ reasoning, money is not fungible, in the sense that amounts cannot be transferred from one expenditure to another. Consumers who behave in this way may sometimes find that they have depleted the amount they budgeted for an item while wanting to buy more of it. Since additional time, efforts …

Where Did Mill Go Wrong? Why The Capital-Managed Rather Than The Labor-Managed Enterprise Is The Predominant Organizational Form In Market Economies, 73 Ohio State L.J. 219 (2012, Justin Schwartz

Justin Schwartz

In this Article, I propose a novel law and economics explanation of a deeply puzzling aspect of business organization in market economies. Why are virtually all firms organized as capital-managed and -owned (capitalist) enterprises rather than as labor-managed and -owned cooperatives? Over 150 years ago, J.S. Mill predicted that efficiency and other advantages would eventually make worker cooperatives predominant over capitalist firms. Mill was right about the advantages but wrong about the results. The standard explanation is that capitalist enterprise is more efficient. Empirical research, however, overwhelmingly contradicts this. But employees almost never even attempt to organize worker cooperatives. I …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Innovations In Governance: A Functional Typology Of Private Governance Institutions, Tracey M. Roberts

Tracey M Roberts

Communities are increasingly looking to private governance institutions, rather than formal government, to set public policy and to manage the environmental and social impacts of globalization. Private governance institutions, sets of rules and structures for governing without government, remain undertheorized despite an expanding literature. Questions remain about why they have arisen, what functions they serve, and whether they are effective. This article advances that literature in several ways. First, the article outlines the inherent limitations of the conventional taxonomy, which groups these institutions based on the identity of their constituent organizations (business interests, civil society, and government entities and their …

Legal Pluralism In Post-Colonial Africa: Linking Statutory And Customary Adjudication In Mozambique, David Pimentel

David Pimentel

Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state. The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many—colonists in the past, and political opportunists today—who have exploited …

Trust And The Reform Of Securities Regulation, Ronald J. Colombo

Ronald J Colombo

Trust is a critically important ingredient in the recipes for a successful economy and a well-functioning securities market. Due to scandals, ranging in nature from massive incompetence, to massive irresponsibility, to massive fraud, investor trust is in shorter supply today than in years past. This is troubling, and commentators, policy makers, and industry leaders have all recognized the need for trust's restoration.

As in times of similar crises, many have turned to law and regulation for the answers to our problems. The imposition of additional regulatory oversight, safeguards, and remedies, some advocate, can help resuscitate investor trust. These advocates have …