Law Commons^™

Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section …

Narratives Of Diversity In The Corporate Boardroom: What Corporate Insiders Say About Why Diversity Matters, Kimberly D. Krawiec, Lissa Lamkin Broome, John M. Conley

Faculty Scholarship

Over the last generation, the concept of diversity has become commonplace and taken-for-granted in discourses ranging from law to education to business. In higher education, for example, it is hard to imagine a faculty job search or a student admissions discussion that was not heavily laden with talk of diversity, in the sense of the representative inclusion of women and racial and ethnic minorities in a group or organization. In this paper we present the results of an interview-based study of the discourse of diversity in a particular business setting: the corporate boardroom. Our principal observation is that—thirty-one years after …

The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes

Faculty Scholarship

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade …

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

No abstract provided.

Welfare As Happiness, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

No abstract provided.

Robinson Everett: The Citizen Lawyer Ideal Lives On, David F. Levi

Faculty Scholarship

In this tribute to Professor Robinson O. Everett, Dean David Levi questions the view that the citizen-lawyer or lawyer-statesmen models are in decline. Tracing Professor Everett’s varied career, accomplishments, and commitments to individuals and institutions; Levi contends that Everett combined the lawyer's traditional focus on the individual with an overall dedication to the larger community. Everett was not just a model citizen; he was a lawyer-citizen. Levi contends that the survival of the lawyer-citizen and lawyer-statesmen models is a matter of choice and character. Nothing in the current structure of the legal economy places these models out of reach for …

An Honest Services Debate, Sara Sun Beale

Faculty Scholarship

This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases …

A Foundational Proposal For Making The Durham Statement Real, Wayne V. Miller

Faculty Scholarship

This outline is an attempt to synthesize the issues surrounding the ambitious project of the Durham Statement on Open Access to Legal Scholarship into a coherent, though still quite preliminary solution. At the heart is the conviction that the problems of digital publishing are best solved by a stable and open organization of and by the stakeholders.

Facing The Debt Challenge Of Countries That Are Too Big To Fail, Steven L. Schwarcz

Faculty Scholarship

The recent financial woes of Greece and other nations are reinvigorating the debate over whether to bail out defaulting countries or, instead, restructure their debt. Bailouts are expensive, in the case of Greece costing potentially hundreds of billions of euros. But a bailout was virtually inevitable because a default on Greek debt was believed to have the potential to bring down the world financial system. This is a growing problem: as finance becomes more intertwined, the potential for a countrys debt default to trigger a larger systemic collapse becomes even more tightly linked. This reveals a phenomenon viewed until recently …

Leverhulme Lecture: The Global Financial Crisis And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 9, 2010, is the first of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University. Prof. Schwarz examines the causes of the global financial crisis, showing it was triggered by market failures, not by financial institution failures, and arguing that any regulatory framework for managing systemic risk must address markets as well as institutions. The lecture also analyzes how regulation should be designed under that broader framework to mitigate systemic risk and its consequences. Finally, the lecture examines the potential systemic effects of sovereign debt crises, demonstrating how regulation can mitigate those effects.

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

Can Mature Democracies Be Perfected?, Guy-Uriel Charles

Faculty Scholarship

One of the more vexing questions about democracy that is often debated among political theorists, political scientists, and legal scholars is whether the democratic character of mature democracies can be improved. From one view, that of democratic realists, mature democracies are perfected as a matter of definition and as a matter of realistic expectations. Because mature democracies are those that respect core democratic principles, variations outside the core are simply policy differences based upon each democratic polity’s willingness to engage in a different set of trade-offs. For democratic realists, variations in democratic practice that are not related to core democratic …

Reply: Good Intentions Matter, Katharine T. Bartlett

Faculty Scholarship

While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter crimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. …

Fragmentation In Mental Health Benefits And Services: A Preliminary Examination Into Consumption And Outcomes, Barak D. Richman, Daniel Grossman, Frank Sloan

Faculty Scholarship

In this chapter, we examine consumption patterns and health outcomes within a health insurance system in which mental health benefits are administered under a carved-out insurance plan. Using a comprehensive dataset of health claims, including insurance claims for both mental and physical health services, we examine both heterogeneity of consumption and variation in outcomes. Consumption variation addresses the regularly overlooked question of how equal insurance and access does not translate into equitable consumption. Outcomes variation yields insights into the potential harms of disparate consumption and of uncoordinated care. We find that even when insurance and access are held constant, consumption …

Explanation Interpretation In Functionalist Comparative Law — A Response To Julie De Coninck, Ralf Michaels

Faculty Scholarship

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations.

A Wonderful Life, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Withdrawing From International Custom, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (CIL), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL, as well as the frequent use of …

Mapping The American Shareholder Litigation Experience: A Survey Of Empirical Studies Of The Enforcement Of The U.S. Securities Law, James D. Cox, Randall S. Thomas

Faculty Scholarship

In this paper, we provide an overview of the most significant empirical research that has been conducted in recent years on the public and private enforcement of the federal securities laws. The existing studies of the U.S. enforcement system provide a rich tapestry for assessing the value of enforcement, both private and public, as well as market penalties for fraudulent financial reporting practices. The relevance of the U.S. experience is made broader by the introduction through the PSLRA in late 1995 of new procedures for the conduct of private suits and the numerous efforts to evaluate the effects of those …

How To Restructure Greek Debt, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

Plan A for addressing the Greek debt crisis has taken the form of a €110 billion financial support package for Greece announced by the European Union and the International Monetary Fund on May 2, 2010. A significant part of that €110 billion, if and when it is disbursed, will be used to repay maturing Greek debt obligations, in full and on time. The success of Plan A is not inevitable; among other things, it will require the Greeks to accept - and to stick to - a harsh fiscal adjustment program for several years. If Plan A does not prosper, …

The Frequency, Predictability, And Proportionality Of Jury Awards Of Punitive Damages In State Courts In 2005: A New Audit, Neil Vidmar, Mirya Holman

Faculty Scholarship

The state of punitive damages in the United States has been a controversial topic for more than three decades, resulting in litigation reaching the U.S. Supreme Court and state supreme courts. Various business advocacy groups have sought to drastically curb or eliminate punitive damages while plaintiffs’ lawyers and consumer groups vigorously defend the use of punitive damages. State legislatures have responded with many substantive and procedural reforms over the years. Yet, in Exxon Shipping Co. v. Baker, the United States Supreme Court, while approvingly citing empirical evidence indicating that there are “not mass-produced runaway awards” and that “by most accounts …

Professionals Or Politicians: The Uncertain Empirical Case For An Elected Rather Than Appointed Judiciary, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a data set of state high court opinions,we construct measures for three aspects of judicial performance: effort, skill, and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions, and the evidence suggests that …

On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Government Of Sudan V. Sudan’S People’S Liberation Movement/Army (“Abyei Arbitration”), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Contingent Valuation Studies And Health Policy, Matthew D. Adler

Faculty Scholarship

No abstract provided.

International Law In Domestic Courts: A Conflict Of Laws Approach, Ralf Michaels, Karen Knop, Annelise Riles

Faculty Scholarship

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique." In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …

Clear Statement Rules And Executive War Powers, Curtis A. Bradley

Faculty Scholarship

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism.

The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative …

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

“Equal Citizenship Stature”: Justice Ginsburg’S Constitutional Vision, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

The Strange Origins Of The Constitutional Right Of Association, John D. Inazu

Faculty Scholarship

Although much has been written about the freedom of association and its ongoing importance to American constitutionalism, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components. Roberts’s doctrinal framework has been rightly criticized. However, neither the right of association nor all of its doctrinal problems start there. The Supreme Court’s foray into the constitutional right of association began a generation earlier with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). This article offers a new …

Lying And Getting Caught: An Empirical Study Of The Effect Of Securities Class Action Settlements On Targeted Firms, James D. Cox, Lynn Bai, Randall S. Thomas

Faculty Scholarship

The ongoing Great Recession has triggered numerous proposals to improve the regulation of financial markets and, most importantly, the regulation of organizations such as credit rating agencies, underwriters, hedge funds, and banks, whose behavior is believed to have caused the credit crisis that spawned the economic collapse. Not surprisingly, some of the reform efforts seek to strengthen the use of private litigation. Private suits have long been championed as a necessary mechanism not only to compensate investors for harms they suffer from financial frauds but also to enhance deterrence of wrongdoing. However, in recent years there has been a chorus …