Law Commons^™

Immigrant Remittances, Ezra Rosser

Ezra Rosser

Remittances, the sending of money from immigrants back to their home countries, are the newest anti-poverty, development activity of the poor to be applauded by international institutions and economists. Exceeding foreign aid and private investment to many developing countries, remittances are being hailed as a new, untapped resource with powerful poverty alleviation and potential development attributes. After presenting the poverty, developmental, and economic characteristics of this new transnational connection between immigrants and their loved ones, as well as the dangerous effects of excessive remittance regulation, the author argues that remittances should be understood as an anti-poverty tool, but not as …

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries …

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Jay Tidmarsh

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly

James J. Kelly Jr.

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Daniel B Kelly

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead …

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Kenneth Ayotte

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would otherwise have under the Bankruptcy Code – at potentially crucial points in the reorganization process. Using simplified examples, we show that side agreements create benefits in some instances, but parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise …

What Does The Minimum Wage Have To Do With Reproductive Rights?, Terry O'Neill

Terry O'Neill

No abstract provided.

Destabilizing The Normalization Of Rural Black Land Loss: A Critical Role For Legal Empiricism, Thomas W. Mitchell

Thomas W. Mitchell

Mitchell's study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it …

Growing Inequality And Racial Economic Gaps, Thomas W. Mitchell

Thomas W. Mitchell

Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Thomas W. Mitchell

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

Hip-Hop And Housing: Revisiting Culture, Urban Space, Power, And Law, Lisa T. Alexander

Lisa T. Alexander

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based …

Training Lawyer-Entrepreneurs, Luz E. Herrera

Luz Herrera

The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Large law firms are laying-off lawyers, bringing in smaller first year associate classes, hiring more contract and experienced lateral attorneys. Government entities and public interest organizations have suffered furloughs, and hiring freezes, and are relying more on volunteers than on new employees to get the …

Result Inequality In Family Law, Margaret F. Brinig

Margaret F Brinig

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the U.S. Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs. This Article …

Climate Justice, Daniel A. Farber

Daniel A Farber

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to …

Financial Hospitals: Defending The Fed’S Role As A Market Maker Of Last Resort, José Gabilondo

José Gabilondo

During the last financial crisis, what should the Federal Reserve (the Fed) have done when lenders stopped making loans, even to borrowers with sterling credit and strong collateral? Because the central bank is the last resort for funding, the conventional answer had been to lend freely at a penalty rate against good collateral, as Walter Bagehot suggested in 1873 about the Bank of England. Acting thus as a lender of last resort, the central bank will keep solvent banks liquid but let insolvent banks go out of business, as they should. The Fed tried this, but when the conventional wisdom …

Poverty In The Human Rights Jurisprudence Of The Nigerian Appellate Courts (1999-2011), Obiora C. Okafor, Basil E. Ugochukwu

Obiora Chinedu Okafor

The major objective of this article is to examine the extent to which the human rights jurisprudence of the Nigerian appellate courts has been sensitive and/or receptive to the socio-economic and political claims of Nigeria’s large population of the poor and marginalized. In particular, the article considers: the extent to which Nigerian human rights jurisprudence has either facilitated or hindered the efforts of the poor to ameliorate their own poverty; the kinds of conceptual apparatuses and analyses utilized by the Nigerian courts in examining the issues brought before it that concerned the specific conditions of the poor; and the key …

Legal Origins, Investor Protection, And Canada, Poonam Puri

Poonam Puri

No abstract provided.

Countercyclical Regulation And Its Challenges

Patricia A. McCoy

Canadian Civil Justice: Relief In Small And Simple Matters In An Age Of Efficiency, Jonathan Silver, Trevor C. W. Farrow

Trevor C. W. Farrow

Canada is in the midst of an access to justice crisis. The rising costs and complexity of legal services in Canada have surpassed the need for these services. This article briefly explores some obstacles to civil justice as well as some of the court-based programmes and initiatives in place across Canada to address this growing access to justice gap. In particular, this article explains the Canadian civil justice system and canvasses the procedures and programmes in place to make the justice system more efficient and improve access to justice in small and simple matters. Although this article does look briefly …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

Jeffrey L Harrison

This article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. Part II places happiness research in the context of past efforts to assess efficiency standards. Part III outlines the schism between efficiency and happiness and examines whether they can be reconciled. Part IV discusses the problems of relying on direct measures of happiness. The concept of decisional equity is described and examined in Part V.

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Evan R. Youngstrom

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be …

Agency Activism As A New Way Of Life: Administrative Modification Of The Internal Revenue Code Through Limited Issue Focused Examinations, W Edward Afield

W. Edward "Ted" Afield

In the name of increasing efficiency and better utilizing limited resources, the IRS has begun to adopt audit policies that overly favor taxpayers and greatly hinder the IRS’s ability to perform thorough audits. Highlighting this trend is a relatively new audit technique used by the Large to Mid-Size Business Division (LMSB), known as the Limited Issue Focused Examination (LIFE) Process. Under LIFE, the LMSB has attempted to involve taxpayers in the audit process by sharing responsibility for timely completion of the audit and has attempted to streamline the audit by reducing the scope of issues examined and applying materiality thresholds …

Special Economic Zones In The United States: From Colonial Charters, To Foreign-Trade Zones, Toward Ussezs, Tom W. Bell

Tom W. Bell

Tyrannous Lex, Thomas E. Baker

Thomas E. Baker

Professor Baker presents a fundamentally unique question. Including all of the legal opinions, statutes and administrative rules, how much law do we have? Is there way to calculate a “Gross Legal Product” for the United States and what effect does this “GLP” have on the U.S. economy? What about all of the secondary legal sources? What do they add, if anything, to our ability to understand all of the law that is constantly being produced? All these and more are the subject of Professor Baker’s article.

Applied Freakonomics: Explaining The Crisis Of Volume, Thomas E. Baker

Thomas E. Baker

No abstract provided.

Law And Economics: We Bought It, It Was Broken, It Was Dangerous, And We Paid For It, Kent Greenfield

Kent Greenfield

The Incentive Problems With The All-Or-Nothing Crowdfunding Model, Garry A. Gabison

Garry A. Gabison

This paper discusses how the all-or-nothing model can dis-incentivize crowd investors to perform due diligence over the fraud or failure risks of crowdfunding campaign. Specifically, the major upside of this model is that a project cannot be funded without a critical mass investing. If enough individual in this critical mass of crowd investors perform its due diligence to check whether projects will become successful then the model function; instead, this paper argues that this model incentivizes the crowd to produce noisy information that cannot be relied. In the all-or-nothing model, sequential investments encourages rational investors not perform due diligence because …

¡Las Preferencias Dependen Del Punto De Referencia!: Un Desafío Al Análisis Económico –Y Coaseano– Del Derecho, Daniel A. Monroy

Daniel A Monroy C

The “coasean” theory of Law and the theory of Law & Economics (L&E) in general, implicitly assume the truthfulness of certain behavioral assumptions: the "preference exogeneity" and "reference independence". In this context, this paper points out some objections to these assumptions, and in this order, the paper shows multiple and deep inconsistencies with regard to: (i) how the L&E predicts individual behavior and the effects of legal rules, and (ii) –from a normative point of view– the way that economic theory recommends the lawmakers decisions. The paper also shows some L&E challenges associated with the behavioral assumption that people value …

Letting Go Of ‘The Normal’ In Pursuit Of An Ever-Elusive Real: A Proposal For Innovation In International Law And Economics Theory And Scholarship, Dan Danielsen

Dan Danielsen

This essay surveys and critically assesses international law and economics scholarship as it has evolved since the 1990s as a distinct strand of international legal theory. In this work, international law and economics scholars have sought to demonstrate the virtues of certain forms of economic modelling techniques for answering questions of institutional arrangement and jurisdictional authority that have posed challenges central to the discipline of international law such as which institutions should make which rules in the global order and whose rules ought to apply in what circumstances. Without denying the importance of these issues, many significant global issues that …