Law Commons^™

Of Neocolonialism, Common Law And Uncodifiable Shari’A: A Reply To Professor An-Na’Im, Paul H. Robinson, Adnan Zulfiqar

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In an earlier article -- Robinson et al., Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms, http://ssrn.com/abstract=941443 -- the authors report the challenges and opportunities that arose during their commission by the United Nations Development Programme and the Government of the Maldives to produce the first modern comprehensive criminal code based upon Shari'a. In this brief essay they respond to published criticisms of that project, which asserted, among other things, that Shari'a cannot be codified, that it should not be codified, that the project was a shameful exercise in neocolonialism, that the project was an act …

First Generation E-Rulemaking: An Assessment Of Regulatory Agency Websites, Stuart Shapiro, Cary Coglianese

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We examine 89 websites from federal regulatory agencies in order to evaluate their ease of use for those interested in commenting on or learning about their proposed regulations. We find that while there has been a lot of attention given to second and third generation “e-rulemaking” efforts, agency websites, a first generation innovation, still have considerable room for improvement. Notwithstanding legislative and executive branch efforts to enhance the accessibility of regulatory information on the Internet, our coding of regulatory agency websites reveals considerable variation in the quality of agency websites, with many websites still failing to provide relatively basic features.

Fashioning Entitlements: A Comparative Law And Economic Analysis Of The Judicial Role In Environmental Centralization In The U.S. And Europe, Jason S. Johnston, Michael G. Faure

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This paper identifies and evaluates, from an economic point of view, the role of the judiciary the steady shift of environmental regulatory authority to higher, more centralized levels of government in both the U.S. and Europe. We supply both a positive analysis of how the decisions made by judges have affected the incentives of both private and public actors to pollute the natural environment, and normative answers to the question of whether judges have acted so as to create incentives that move levels of pollution in an efficient direction, toward their optimal, cost-minimizing (or net-benefit-maximizing) levels. Highlights of the analysis …

The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson

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Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement …

The Economic Impact Of International Labor Migration: Recent Estimates And Policy Implications, Howard F. Chang

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In this essay, I survey the economic theory and the most recent empirical evidence of the economic impact of international labor migration. Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. The gains from liberalization would be distributed such that if we examine the effects on natives in the countries of immigration, on the migrants, and on those left behind in the countries of emigration, we find that each group would enjoy …

The Expressive Function Of Directors’ Duties To Creditors, Jonathan C. Lipson

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This Article offers an explanation of the “doctrine” of directors’ duties to creditors. Courts frequently say—but rarely hold—that corporate directors owe duties to or for the benefit of corporate creditors when the corporation is in distress. These cases are puzzling for at least two reasons. First, they link fiduciary duty to priority in right of payment, effectively treating creditors as if they were shareholders, at least for certain purposes. But this ignores the fact that priority is a complex and volatile concept. Moreover, contract and other rights at law usually protect creditors, even (especially) when a firm is distressed. It …

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

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This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

Law, Culture, And Conflict: Dispute Resolution In Postwar Japan, Eric Feldman

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The 1963 publication of Takeyoshi Kawashima’s “Dispute Resolution in Contemporary Japan” has indelibly influenced the study of law and conflict in postwar Japan. A mere nineteen text pages of Arthur Taylor von Mehren’s seven hundred–page volume, Law in Japan: The Legal Order in a Changing Society, Kawashima’s observations about the infrequency of litigation in Japan, and his emphasis on the sociocultural context of conflict, continue to resonate. As a noted scholar of Japanese law has succinctly written, “Virtually every scholarly work [about Japanese law] in the last thirty-five years has been framed in some way or another by the conceptual …

Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese

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Techno-optimists advocate the application of information technology to the rulemaking process as a means of advancing strong democracy -- that is, direct, broad-based citizen involvement in regulatory policy making. In this paper, I show that such optimism is unfounded given the obstacles to meaningful citizen deliberation posed by the impenetrability of current e-rulemaking developments, the prevailing level of citizen disengagement from politics and policy making more generally, and most citizens’ lack of the requisite technical information about and understanding of the issues at stake in regulatory decision making. As such, a more realistic goal for the application of new technology …

Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman

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This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably …

Taking Compensation Private, Abraham Bell, Gideon Parchomovsky

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In light of the expansive interpretation of the ""public use"" requirement, the payment of ""just compensation"" remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property …

Christianity And The Large Scale Corporation, David A. Skeel Jr.

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Ask most people what they associate with “Christianity and the corporation” and, at least in the US, they may mention activist nuns calling for shareholder votes on sweatshop labor, nuclear weapons or divestment from South Africa, or perhaps a newspaper story about mutual funds that invest only in “faith friendly” corporations. Each is a contemporary manifestation of relations that run far deeper, and date back well over a thousand years. The early church spawned many of the largest corporate enterprises of the middle ages, and tenaciously promoted the concept of a collective entity distinct from the state. When the modern …

"Free" Religion And "Captive" Schools: Protestants, Catholics, And Education, 1945-1965, Sarah Barringer Gordon

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No abstract provided.

The Missing Monitor In Corporate Governance: The Directors' And Officers' Liability Insurer, Tom Baker, Sean J. Griffith

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This article reports the results of empirical research on the monitoring role of directors’ and officers’ liability insurance (D&O insurance) companies in American corporate governance. Economic theory provides three reasons to expect D&O insurers to serve as corporate governance monitors: first, monitoring provides insurers with a way to manage moral hazard; second, monitoring provides benefits to shareholders who might not otherwise need the risk distribution that D&O insurance provides; and third, the “bonding” provided by risk distribution gives insurers a comparative advantage in monitoring. Nevertheless, we find that D&O insurers neither monitor corporate governance during the life of the insurance …

Self-Handicapping And Managers’ Duty Of Care, David A. Hoffman

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This symposium essay focuses on the relationship between managers' duty of care and self-handicapping, or constructing obstacles to performance with the goal of influencing subsequent explanations about outcomes. Conventional explanations for failures of caretaking by managers have focused on motives (greed) and incentives (agency costs). This account of manager behavior has led some modern jurists, concerned about recent corporate scandals, to advocate for stronger deterrent measures to realign manager and shareholder incentives. * Self-handicapping theory, by contrast, teaches that bad manager behavior may occur even when incentives are well-aligned. Highly successful individuals in particular come to fear the pressure of …

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

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Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.

The Independent Significance Of The Press Clause Under Existing Law, C. Edwin Baker

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The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment – precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent …

Toward Common Sense And Common Ground? Reflections On The Shared Interests Of Managers And Labor In A More Rational System Of Corporate Governance, Leo E. Strine Jr.

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In this essay, Vice Chancellor Strine reflects on the common interests of those who manage and those who labor for American corporations. The first part of the essay examines aspects of the current corporate governance and economic environment that are putting management and labor under pressure. The concluding section of the essay identifies possible corporate governance initiatives that might — by better focusing stockholder activism in particular and corporate governance more generally on long-term, rather than short-term, corporate performance — generate a more rational system of accountability, that focuses on the durable creation by corporations of wealth through fundamentally sound, …

Judicial Activism And Its Critics, Kermit Roosevelt Iii, Richard Garnett

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No abstract provided.

Labor Unions: A Corporatist Institution In A Competitive World, Michael L. Wachter

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Union membership, as a percentage of the private sector workforce, has been in decline for 50 years. I argue that the cause of this unrelenting decline is a single, fundamental factor – the change in the United States economy from a corporatist-regulated economy to one based on free competition. Most labor commentators have explained the decline by a confluence of unrelated economic and legal forces. Labor economists typically stress economic explanations, which vary from compositional shifts in the job structure to increased competition both domestically and internationally. On the other hand, labor law commentators naturally focus on labor law explanations, …

Forgiveness In Criminal Procedure, Stephanos Bibas

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Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would …

Fiduciary Duties And The Analyst Scandals, Jill E. Fisch

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No abstract provided.

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

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No abstract provided.

Litigating Civil Rights Cases To Reform Racially Biased Criminal Justice Practices, David Rudovsky

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No abstract provided.

Reply Of Professor Rudovsky To Professor Stephen I. Vladeck, "The Field Theory: Martial Law, The Suspension Power, And The Insurrection Act, David Rudovsky

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No abstract provided.

Chief Justice Rehnquist's Appointments To The Fisa Court: An Empirical Perspective, Theodore Ruger

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No abstract provided.

Abortion Access And Risky Sex Among Teens: Parental Involvement Laws And Sexually Transmitted Diseases, Jonathan Klick, Thomas Stratmann

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Laws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. Assuming choices to engage in risky sex are made rationally, parental involvement laws should lead to less risky sex among teens, either because of a reduction of sexual activity altogether or because teens will be more fastidious in the use of birth control ex ante. Using gonorrhea rates among older women to control for unobserved heterogeneity across states, our results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage …

The Consumer Compromise In Revised U.C.C. Article 9: The Shame Of It All, Charles W. Mooney Jr.

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No abstract provided.

Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch

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No abstract provided.

Does Analyst Independence Sell Investors Short?, Jill E. Fisch

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Regulators responded to the analyst scandals of the late 1990s by imposing extensive new rules on the research industry. These rules include a requirement forcing financial firms to separate investment banking operations from research. Regulators argued, with questionable empirical support, that the reforms were necessary to eliminate analyst conflicts of interest and ensure the integrity of sell-side research.

By eliminating investment banking revenues as a source for funding research, the reforms have had substantial effects. Research coverage of small issuers has been dramatically reduced—the vast majority of small capitalization firms now have no coverage at all. The market for research …