Law Commons^™

Compulsory Water Fluoridation: Justifiable Public Health Benefit Or Human Experimental Research Without Informed Consent, Rita Barnett

Rita Barnett-Rose

Most Americans are under the impression that compulsory water fluoridation is a safe and effective public health measure to fight tooth decay, and courts have routinely upheld compulsory water fluoridation schemes as legitimate exercises of police power to ensure the dental health of communities. Yet the evidence is steadily mounting against water fluoridation, with recent scientific studies suggesting that not only is fluoridation not effective at achieving the stated public health goal of combating dental caries, but also that excess exposure to fluoride contributes to a host of far more serious health concerns, particularly in the very population the public …

Thinking About Tax Malpractice: Outline And Hypotheticals, Michael Lang

Michael B. Lang

There may be a lot of ethical traps that face the tax practitioner but there are also common-sense ways to avoid them.

Citizens United, Corporate Personhood And Corporate Power: The Tension Between Constitutional Law And Corporate Law, Susanna Ripken

Susanna K. Ripken

No abstract provided.

The Intellectual Forebears Of Citizens United, Ronald Rotunda

Ronald D. Rotunda

No abstract provided.

Constitutionalizing Judicial Ethics: Judicial Elections After Republican Party Of Minnesota V. White, Caperton And Citizens United, Ronald Rotunda

Ronald D. Rotunda

No abstract provided.

Net Neutrality Regulation: The Economic Evidence, Vernon Smith, Jerry Brito, Martin Cave, Robert Crandall, Larry Darby, Jeffrey Eisenbach, Jerry Ellig, Henry Ergas, David Farber, Gerald Faulhaber, Robert Hahn, Alfred Kahn, Wayne Leighton, Robert Litan, Glen Robinson, Hal Singer, William Taylor, Timothy Tardiff, Leonard Waverman, Dennis Weisman

Vernon L. Smith

In the authors' shared opinion, the economic evidence does not support the regulations proposed in the Commission’s Notice of Proposed Rulemaking Regarding Preserving the Open Internet and Broadband Industry Practices (the “NPRM”). To the contrary, the economic evidence provides no support for the existence of market failure sufficient to warrant ex ante regulation of the type proposed by the Commission, and strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run. To the extent the types of conduct addressed in the NPRM may, in isolated circumstances, have the potential to harm competition …

Radio Spectrum And The Disruptive Clarity Of Ronald Coase, Vernon Smith, Thomas Hazlett, David Porter

Vernon L. Smith

In the Federal Communications Commission, Ronald Coase exposed deep foundations via normative argument buttressed by astute historical observation. The government controlled scarce frequencies, issuing sharply limited use rights. Spillovers were said to be otherwise endemic. Coase saw that Government limited conflicts by restricting uses; property owners perform an analogous function via the “price system.” The government solution was inefficient unless the net benefits of the alternative property regime were lower. Coase augured that the price system would outperform. His spectrum auction proposal was mocked by communications policy experts, opposed by industry interests, and ridiculed by policy makers. Hence, it took …

Guantanamo As A 'Legal Black Hole': A Base For Expanding Space, Markets, And Culture, Ernesto Hernandez-Lopez

Ernesto A. Hernandez

Guantanamo appears as a "legal black hole" especially when examining detainee rights, but in reality empire purposefully creates these jurisdictional anomalies. To further U.S. interests overseas in 1903, base jurisdiction was crafted as anomalous between Cuban sovereignty and American occupation. For the 174 still detained, it's still a black hole. After four Supreme Court decisions, anomaly continues to pervade detention litigation. Functional tests for extraterritorial constitutional rights, habeas proceedings, and the unclear fate of Uighur-detainees all suffer from doctrinal obfuscation. Detainees rights, or lack of, are just one aspect of anomaly. Empire's dynamic forces produced these ambiguities. Guantanamo represents American …

Codifying Caperton V. A.T. Massey Coal Co., Ronald Rotunda

Ronald D. Rotunda

Before Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266 (2009). due process mandated judicial disqualification in two basic situations: first, when the judge had a direct, personal, and substantial pecuniary interest in the case, or second, when the judge acted as judge, jury, prosecutor, and complaining witness, and there was no need for an instant response. Caperton adds a third category. Due process requires a judge to disqualify himself if a person who is not a party (but is a principal officer of a party) has made substantial independent expenditures to support the successful judicial candidate or …

Boumediene V. Bush And Guantanamo, Cuba: Does The 'Empire Strike Back'?, Ernesto Hernandez-Lopez

Ernesto A. Hernandez

Commenting on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantanamo Bay, Cuba, this Article argues that anomaly on the base heavily influences "War on Terror" detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantanamo but retains "complete jurisdiction and control" for an indefinite period; while Cuba has "ultimate sovereignty." Gerald Neuman labels this an "anomalous zone" with fundamental legal rules locally suspended. The base was chosen as a detention center because of …

Judicial Transparency, Judicial Ethics, And A Judicial Solution: An Inspector General For The Courts, Ronald Rotunda

Ronald D. Rotunda

Many federal judges routinely fear criticism, but that fear is unwarranted. The public is rightly concerned that the procedure to investigate and discipline problem-judges is flawed, particularly in a few high-profile cases discussed in this article. Several recent indictments of federal judges add to the problem. As Judge Ralph Winter has acknowledged, the status quo is "not a confidence builder". Judges should welcome an Inspector General for the Federal Courts, who could restore public confidence in the federal judicial discipline system. The Inspector General can investigate potential ethical violations and proceed in those few instances where more is needed. This …

Evidence-Based Sentencing: The Science Of Sentencing Policy And Practice, Richard Redding

Richard E. Redding

Sentencing is where much of the action is in criminal practice, particularly since ninety percent or more of cases never go to trial but are settled through plea bargains. Acting within the constraints of applicable presumptive or mandatory sentencing guidelines, probation officers, prosecutors, defense attorneys, and judges typically rely on their instincts and experience to fashion a sentence based upon the information available about the offense and offender. But relying upon gut instinct and experience is no longer sufficient. It may even be unethical – a kind of sentencing malpractice that produces sentencing recommendations and decisions that are neither transparent …

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Lawrence Rosenthal

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus …

Juvenile Transfer Laws: An Effective Deterrent To Delinquency?, Richard Redding

Richard E. Redding

Provides an overview of research on the deterrent effects of transferring youth from juvenile to criminal courts, focusing on large-scale comprehensive OJJDP-funded studies on the effect of transfer laws on recidivism. The Bulletin reviews all of the extant research on the general and specific deterrent effects of transferring juveniles to adult criminal court.

Book Review: Juris Types, Learning Law Through Self-Understanding, Richard Redding

Richard E. Redding

This article reviews the new book by Martha Peters and Don Peters, Juris Types: Learning Law Through Self-Understanding (2007). The book proposes that legal pedagogy and student learning strategies be guided in part by Carl Jung's Psychological Type Theory and the Myers-Briggs Type Indicator ("MBTI"). The MBTI is one of the most widely used personality tests in the world today, although the test has never been accepted in the academic community. This paper reviews the history of the development of the MBTI, and the empirical research on its validity and reliability, to explain why the test and its associated theory …

Training The Parents Of Juvenile Offenders: State Of The Art And Recommendations For Service Delivery, Richard Redding

Richard E. Redding

Parent training is consistently highlighted as one of the most effective means of preventing delinquency and treating young children with conduct problems, and it has proven to be one of the most cost-effective interventions for doing so. There is, however, far less evidence supporting the efficacy of parent-training programs with adolescents and juvenile offenders. Nonetheless, it still seems to be one of the more promising methods for treating the behavior problems of adolescent delinquents, especially when used in conjunction with other carefully selected program components. We begin with an overview of parent training, highlighting the key components of successful programs. …

Graduated Consent Theory, Explained And Applied, Tom W. Bell

Tom W. Bell

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we …

Sovereignty Migrates In Us And Mexican Law: Transnational Influences In Plenary Power And Non-Intervention, Ernesto Hernandez-Lopez

Ernesto A. Hernandez

Mexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico's norm of non-intervention (NIV) and the US' plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state's domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico's 'no policy' on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, 'plenary,' authority …

Building A Market: From Personal To Impersonal Exchange, Vernon Smith, E. Kimbrough, B. Wilson

Vernon L. Smith

Adam Smith identified two key components in the wealth creation process of human societies: exchange and specialization. More than two centuries later relatively little is understood about the underlying process by which people build exchange systems and discover comparative advantage. In this chapter we report on a pilot experiment that explores the social mainsprings that give rise to the market. Specifically, using cash-motivated participants we compare and contrast the personal, social interactions within a village with those of the participants engaged in long-distance trade among a system of interconnected virtual villages.

Policy Oscillation In California's Law Of Premises Liability, Ronald L. Steiner

Ronald L. Steiner

The expansion of tort liability beginning in the middle of the 20th century, and the reaction against that expansion as the century came to a close, constitutes a clear demonstration of the nostrum that tort law is “public law in disguise.” Adjudication of private disputes became a battleground of public policy preferences as to how risks and compensation should be distributed so as to serve societal interests such as fairness, efficiency, and personal autonomy. This article studies examines in detail a critical battleground in a key state, the revolution and counter-revolution in premises liability in California, as a paradigm case. …

Historical Property Rights, Sociality, And The Emergence Of Impersonal Exchange In Long-Distance Trade, Vernon Smith, Erik Kimbrough, Bart Wilson

Vernon L. Smith

This laboratory experiment explores the extent to which impersonal exchange emerges from personal exchange with opportunities for long-distance trade. We design a three-commodity production and exchange economy in which agents in three geographically separated villages must develop multilateral exchange networks to import a third good only available abroad. For treatments, we induce two distinct institutional histories to investigate how past experience with property rights affect the evolution of specialization and exchange. We find that a history of un-enforced property rights hinders our subjects' ability to develop the requisite personal social arrangements necessary to support specialization and effectively exploit impersonal long-distance …

Exchange And Specializiation As A Discovery Process, Vernon Smith, Sean Crockett, Bart Wilson

Vernon L. Smith

In this paper we study the performance of an economic environment that can support specialization if the participants implement and develop some system of exchange. We define a closed economy in which the participants must discover the ability to exchange, implement it, and ascertain what they are comparatively advantaged in producing. Many people demonstrate the ability to find comparative advantage, capture gains from trade, and effectively choose production that is consistent with the choices of others. However, many do not become specialists, even though full efficiency can only be achieved if everyone does so. Near-full efficiency does occur bilaterally in …

The Media's Ancien Regime, Hugh Hewitt

Hugh Hewitt

Columbia School of Journalism is undertaking a major change via the introduction of a second graduate degree program. Dean Nicholas Leman believes that decline in credibility of major media can be arrested via the teaching to journalists of power skills, e.g. regression analysis, that equip them to provide readers/listeners with more than an account of competing narratives. The attempt is doomed, according to Hewitt, not because of journalists' inability to learn new skills, but because of a uniformity of ideological beliefs that inevitably distort stories and thus diminish credibility in a way that cannot be hidden from a networked world. …

The Propriety Of A Judge's Failure To Recuse When Being Considered For Another Position, Ronald Rotunda

Ronald D. Rotunda

Some commentators have argued that Judge John Roberts, recently confirmed as Chief Justice of the United States Supreme Court, violated a federal statute because of his failure to recuse himself in the case of Hamdan v. Rumsfeld, which a panel of the D.C. Circuit including Roberts recently decided. Several Senators raised the issue of Judge Roberts' failure to recuse himself during the course of his confirmation hearings, but the Judge did not comment on it because the case was still pending.

Any proposed "jobs recusal" rule, which would require a judge to recuse himself in such circumstances, imposes costs that …

Mental Disorders And The Law, Richard Redding

Richard E. Redding

This chapter provides an introduction to the major classes of mental disorder and the ways in which they are salient to selected aspects of American criminal and civil law, focusing particularly on criminal law issues.

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard Redding

Richard E. Redding

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. "Irresistible impulse" (or "control") tests, on the other hand, provide an insanity defense to those who …

Predictions, Projections, And Precautions: Conveying Cautionary Warnings In Corporate Forward-Looking Statements, Susanna Ripken

Susanna K. Ripken

This article discusses the problems that are created when corporate insiders make public predictions about the future prospects of their business. Investors crave these types of forward-looking corporate disclosures because investors use them to make judgments about the future profitability of companies. Corporations, however, are often reluctant to make predictions and projections because sometimes the predictions fail to come true, and investors may then sue corporations for misleading the market. Congress enacted a controversial statutory safe harbor designed to encourage corporations to make forward-looking statements. The safe harbor immunizes corporations from liability so long as they include meaningful cautionary warnings …

The Law And Economics Of Irrational Behavior: An Introduction, Vernon Smith, Francesco Parisi

Vernon L. Smith

Behavioral economists accept many of the premises of traditional economic thought: that situational outcomes are the result of individual decisions, taking place in a particular economic environment. But behavioral economists go a step further, arguing that the human action is shaped not only by relevant economic constraints, but is highly affected by people's endogenous preferences, knowledge, skills, endowments and a variety of psychological and physical constraints. Incentives matter and incentives drive human behavior, but incentives are often more than simple monetary gain. The rise of behavioral economics and the findings of experimental economics, have led to a clash between the …

Incorporating Instream Flow Values Into A Water Market, Vernon Smith, James Murphy, Ariel Dinar, Richard Howitt, Stephen Rassenti, Marca Weinberg

Vernon L. Smith

We use laboratory experiments to test three different water market institutions designed to incorporate instream flow values into the allocation. The institutions are (1) a baseline with fixed minimum flow constraints, (2) an environmental agent contributing to the cost of providing instream flows, and (3) creating an instream flow right in which an environmental agent can sell the right to reduced flows. Using a "smart" computer-coordinated market, we find that direct environmental participation in the market can achieve highly efficient and stable allocations. A particularly attractive and practical feature of the third institution is that it nests the status quo …

Bag Wars And Bank Wars, The Gucci And Banque National De Paris Hostile Bids: European Corporate Culture Responds To Active Shareholders, Ernesto Hernandez-Lopez

Ernesto A. Hernandez

This essay examines trends in European corporate governance, which shape the context wherein hostile takeovers attempts have occurred. It examines shareholder activism, corporate structure in Europe, and the European Union's (EU) attempts to regulate takeovers. This essay analyzes the takeover experiences involving: 1) Louis Vuitton Moet Hennessey's (LVMH) 1999-2001 bid for Gucci, with Pinault-Printemps-Redoute (PPR) serving as Gucci's white knight, and 2) Banque National de Paris' (BNP) 1999 dual-bid for Paribas and Societe General (SG). The essay asks two central questions: 1) why were the European hostile takeovers so prolonged and antagonistic?; and 2) what has been the EU and …