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Articles 31 - 60 of 102
Full-Text Articles in Law
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez
Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez
Faculty Scholarship
No abstract provided.
Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins
Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins
Faculty Scholarship
Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …
Social Choice, Crypto-Initiaives, And Policymaking By Direct Democracy, Thad Kousser, Mathew D. Mccubbins
Social Choice, Crypto-Initiaives, And Policymaking By Direct Democracy, Thad Kousser, Mathew D. Mccubbins
Faculty Scholarship
No abstract provided.
The Limits Of Lawyering: Legal Opinions In Structured Finance, Steven L. Schwarcz
The Limits Of Lawyering: Legal Opinions In Structured Finance, Steven L. Schwarcz
Faculty Scholarship
Significant controversy surrounds the issuance of legal opinions in structured finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt. Reflecting at its core the unresolved boundaries between public and private in financial transactions, this controversy raises important issues of first impression: To what extent, for example, should lawyers be able to issue legal opinions that create negative externalities? Furthermore, what should differentiate the roles of lawyers and accountants in disclosing information to investors? Resolution of these issues not only helps to demystify the mystique, and untangle …
Book Review, Just Trade, Joost H. B. Pauwelyn
Book Review, Just Trade, Joost H. B. Pauwelyn
Faculty Scholarship
Reviewing, Frank J. Garcia, Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade (2003)
The Sutherland Report: A Missed Opportunity For Genuine Debate On Trade, Globalization, And Reforming The Wto, Joost H. B. Pauwelyn
The Sutherland Report: A Missed Opportunity For Genuine Debate On Trade, Globalization, And Reforming The Wto, Joost H. B. Pauwelyn
Faculty Scholarship
In January 2005, at the 10th anniversary of the organization, the World Trade Organization (WTO) issued the long-awaited high-level panel report on The Future of the WTO. This essay explains why the so-called Sutherland Report, named after one of its authors, is likely to be regarded by history as a missed opportunity. The report was written by insiders, focuses on insider problems and offers what are essentially insider-based solutions. The essay addresses two specific foundational problems skirted in the Sutherland report: (i) the WTO's protectionist/producer bias and (ii) the question of coordination and coherence with other international organizations. It also …
The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels
The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels
Faculty Scholarship
Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses This paper does not set out its …
Thoughts On ‘Smith’ And Religious-Group Autonomy, Laura S. Underkuffler
Thoughts On ‘Smith’ And Religious-Group Autonomy, Laura S. Underkuffler
Faculty Scholarship
Reconciling the federal constitutional guarantee of religious free exercise with the collective interests of civil society has long been a difficult problem for First Amendment jurisprudence. For many years, the United States Supreme Court protected claimed religious exercise if it was required by a central religious belief, was substantially burdened by government action, and was not outweighed by a compelling state interest. The last prong of this test, in particular, afforded substantial protection to claimed religious exercise when pitted against state laws. In Employment Division v. Smith, decided little more than a decade ago, the Court abruptly shifted course. Citing …
The What And Why Of Claims Resolution Facilities, Francis Mcgovern
The What And Why Of Claims Resolution Facilities, Francis Mcgovern
Faculty Scholarship
"Claims resolution facility" is a generic term used to describe a wide range of entities that process and resolve claims made against a potential funding source. In the context of a natural disaster, for example, there might be facilities to process claims based upon insurance policies, federal or state statutory or administrative rights, international relief efforts, contractual obligations, or any other basis for receiving economic or noneconomic benefits. These facilities are generally characterized by a large number of claims that are in need of rapid and efficient resolution. In certain instances, however, the positive connotations of the term have been …
The Framework Of Full Faith And Credit And Interstate Recognition Of Same-Sex Marriages, William A. Reppy Jr.
The Framework Of Full Faith And Credit And Interstate Recognition Of Same-Sex Marriages, William A. Reppy Jr.
Faculty Scholarship
This article considers whether a Massachusetts same-sex marriage or a Vermont same-sex civil union is entitled to full faith and credit in other states by virtue of the Full Faith and Credit Clause of Article IV of the United States Constitution ("the Clause") and, under a statute enacted by Congress to implement that clause, Section 1739 of the Federal Judicial Code.
Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky
Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Tax Or Welfare - The Administration Of The Earned Income Tax Credit, Lawrence A. Zelenak
Tax Or Welfare - The Administration Of The Earned Income Tax Credit, Lawrence A. Zelenak
Faculty Scholarship
No abstract provided.
Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami
Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami
Faculty Scholarship
No abstract provided.
Public And Private Enforcement Of The Securities Laws: Have Things Changed Since Enron?, James D. Cox, Randall S. Thomas
Public And Private Enforcement Of The Securities Laws: Have Things Changed Since Enron?, James D. Cox, Randall S. Thomas
Faculty Scholarship
No abstract provided.
Behavioral Economics And Health Policy: Understanding Medicaid’S Failure, Barak D. Richman
Behavioral Economics And Health Policy: Understanding Medicaid’S Failure, Barak D. Richman
Faculty Scholarship
This Article employs a behavioral economic analysis to understand why Medicaid has failed to improve the health outcomes of its beneficiaries. It begins with a formal economic model of health care consumption and then systematically incorporates a survey of psychosocial variables to formulate explanations for persistent health disparities. This methodology suggests that consulting the literature in health psychology and intertemporal decision theory - empirical sources generally excluded from orthodox economic analysis - provides valuable material to explain certain findings in health econometrics. More significantly, the lessons from this behavioral economic approach generate useful policy considerations for Medicaid policymakers, who largely …
We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz
We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller
Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller
Faculty Scholarship
This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …
Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky
Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky
Faculty Scholarship
No abstract provided.
Justification, Legitimacy, And Administrative Governance, Matthew D. Adler
Justification, Legitimacy, And Administrative Governance, Matthew D. Adler
Faculty Scholarship
Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck
Faculty Scholarship
No abstract provided.
Exiting Treaties, Laurence R. Helfer
Exiting Treaties, Laurence R. Helfer
Faculty Scholarship
This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.
Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec
Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec
Faculty Scholarship
This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Faculty Scholarship
No abstract provided.
Against “Individual Risk”: A Sympathetic Critique Of Risk Assessment, Matthew D. Adler
Against “Individual Risk”: A Sympathetic Critique Of Risk Assessment, Matthew D. Adler
Faculty Scholarship
No abstract provided.
2003-2004 Supreme Court Update, Erwin Chemerinsky
2003-2004 Supreme Court Update, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young
Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young
Faculty Scholarship
No abstract provided.
Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler
Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler
Faculty Scholarship
Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …
Judging The Law Of Politics, Guy-Uriel Charles
Judging The Law Of Politics, Guy-Uriel Charles
Faculty Scholarship
In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.