Law Commons^™

Building Reputation In Constitutional Courts: Political And Judicial Audiences, Nuno Garoupa, Tom Ginsburg

Faculty Scholarship

This paper explains how specialized constitutional courts navigate between the demands of two different external audiences, the political and the judicial. The political audience expects constitutional court judges to respond to political pressures and to vote ideologically. Such voting, however, might undermine the constitutional court’s ability to influence the judicial audience, which necessarily views cases as apolitical in character. We argue that the need to achieve supremacy over other higher courts constrains the ability of constitutional judges to pursue ideological goals. We examine patterns of consensus and fragmentation to demonstrate our proposition. We find empirical evidence that the existence of …

Explaining Constitutional Review In New Democracies: The Case Of Taiwan, Nuno Garoupa, Veronica Grembi, Shirley Ching-Ping Lin

Faculty Scholarship

This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period between 1988 and 2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they …

The Brady Rule May Hurt The Innocent, N. Garoupa, Matteo Rizzolli

Faculty Scholarship

Mandatory disclosure of evidence (the so-called Brady rule) is considered to be among the most important bulwarks against prosecutorial misconduct. While protecting the generality of defendants in the criminal process, we show that under certain reasonable assumptions this procedural mechanism may hurt innocent defendants by inducing prosecutors to adjust their behavior to their detriment. The main rationale for our thesis is that, if forced to reveal exculpatory information, the prosecutor might not look for that information in the first place, and in turn this could harm the innocent under certain reasonable conditions. We extensively discuss our results in the context …

In The Name Of Watergate: Returning Ferpa To Its Original Design, Mary Margaret Penrose

Faculty Scholarship

This article seeks to proffer an improved definition for “education records” without altering the legislation's original design. Part I provides a historical account of Watergate's climate to illustrate why privacy rights blossomed during the 1970s and provided an atmosphere conducive to the passage of FERPA. Part II details FERPA's legislative history. Part III presents the statute's current definition of “education records” and evaluates how courts interpret FERPA. Part IV suggests a modernized definition that considers the computerization of education and, correspondingly, education records. The section begins with a comparison of FERPA and the Privacy Act of 1974. Thereafter, it exposes …

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Faculty Scholarship

This piece explores efforts by museums and galleries to enhance user experience (and increase attendance) using technology to create interactive and engaging exhibitions, and considers the copyright implications of this 'participatory museum" movement. From the derivative rights provisions in the Copyright Act to the Visual Artists' Rights Act, where do the artist's rights stop and the museum's obligations begin, and how is the public's interest best served?

The Law And Economics Of Legal Parochialism, Nuno Garoupa

Faculty Scholarship

Law and economics is influential in U.S. legal scholarship, but not as much elsewhere. Different explanations have been suggested for this. In this Article, I argue that the problems faced by law and economics outside of the United States are neither particular to the field nor to the local context. I offer an interpretation based on the similarities between legal parochialism and trade protectionism. A tentative prediction is that globalization in legal markets might change the current patterns.

Hybrid Judicial Career Structures: Reputation Versus Legal Tradition, Nuno Garoupa, Tom Ginsburg

Faculty Scholarship

Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.

Global Economies, Regulatory Failure, And Loose Money: Lessons For Regulating The Finance Sector From Iceland's Financial Crisis, Birgir T. Petursson, Andrew P. Morriss

Faculty Scholarship

Iceland was the first developed economy to fall into crisis in 2008, with the collapse of its banking sector, currency value, and economy. The collapse threw Iceland into a political crisis and provoked a serious international dispute between Iceland and Britain and the Netherlands over responsibility for the failed banks. Prior to 2008, Iceland had been treated as the poster child for deregulation; since 2008, it has been held up as the poster child for the dangers offinancial liberalization. Neither is accurate. Rather, Iceland presents a cautionary tale about the interrelationships between fiscal and monetary policy and regulatory measures. Excessive …

Caught In A Preventive Dragnet: Selective Counterterrorism In A Post 9/11 America, Sahar F. Aziz

Faculty Scholarship

While post-9/11 preventive counterterrorism policies have adversely impacted various groups of Americans, no group has been more profoundly affected than the Muslim, Arab, and South Asian communities. Mosque infiltration has become so rampant that some congregants assume they are under surveillance as they fulfill their religious obligations. Government informants have ensnared numerous, seemingly hapless and unsophisticated young men such that Muslims no longer know whom they can trust among each other. Aggressive prosecutions of Muslim charities and individuals across the country have embittered communities that now feel under siege by their government and distrusted by their non-Muslim compatriots.19 Selective counterterrorism …

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Faculty Scholarship

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon

Faculty Scholarship

The question explored here is whether ADR processes introduced to aid in the development of rule of law to help build legitimacy with legal authorities and institutions could instead work against legitimacy or further undermine it. This article will question whether establishing a new ADR program is advisable in a country with endemic corruption that is struggling to keep, or maintain, a moderately functional legal system. In these countries, the general public may view informal practices that occur in private and without standard rules to be another form of corruption and promoting such practices could reinforce already existing attitudes about …

Opting For Change Or Continuity - Thinking About Reforming The Judicial Article Of Montana's Constitution, Andrew P. Morriss

Faculty Scholarship

Although Montanans rejected the proposed Constitutional Convention in the November 2010 election, the issues raised by the debate remain. As Montanans consider whether to revisit their state Constitution through initiative, referenda, or legislative action, they have the opportunity to reconsider the structure of their judiciary. This opportunity is important because state judiciaries play an increasingly significant role in American government for multiple reasons. Some state high courts have taken up former United States Supreme Court Justice William Brennan's call for state constitutional jurisprudence to advance civil liberties. As state administrative agencies wrestle with increasingly difficult regulatory issues, state courts have …

Choosing Judges In Brazil: Reassessing Legal Transplants From The United States, Maria Angela De Santa Cruz Oliveira Jardim, Nuno Garoupa

Faculty Scholarship

This Paper compares the Brazilian with the United States general procedures of judicial selection at the state and federal levels. The most significant difference between the two approaches is that in Brazil the selection at the lower level is entirely administered by the judiciary, while in the United States, judges are either approved by the executive or elected by popular vote. At the Supreme Court level, however, the Brazilian Constitution uses the same mechanism that is used in the United States, namely presidential nomination and Senate confirmation. This Article contends that the constitutional transplant of the U.S. model of judicial …

The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado

Faculty Scholarship

This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …

Law Library Budgets In Hard Times, Taylor Fitchett, James Hambleton, Penny Hazelton, Anne Klinefelter

Faculty Scholarship

This article begins by looking at the environment of the academic law library of the twenty-first century, followed by an analysis of the current economic climate and an assessment of how these difficult economic times will affect academic law libraries. The next section discusses strategies a law library director can marshal to manage a multimillion-dollar budget in face of reduced resources. Focusing in on the institution's own budget and accounting framework, creative thinking, and planning for use of resources can have successful and innovative outcomes for law libraries and the schools they support. Finally tools and strategies that can help …

Towards A Convention For The International Sale Of Real Property: Challenges, Commonalities, And Possibilities, Christopher K. Odinet

Faculty Scholarship

In a world that is increasingly global in scope, society has come to view the ever-growing body of international commercial laws as being exceptionally important. This is evidenced through the adoption of several high profile pieces of legislation over the past several decades: International Interest in Mobile Equipment - Study LXXI, the EU’s Draft Common Frame of Reference, the EU Directives on Consumer Protection, and, most noteworthy of all, the Convention for the International Sale of Goods (CISG).

As raised by Professors Sprankling, Coletta, and Mirow, what has been conspicuously absent from this growing body of laws is an international …

Acta And Its Complex Politics, Peter K. Yu

Faculty Scholarship

Written for a special issue on the politics of intellectual property, this article examines the "country club" approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement but also because it is a bad country club agreement.

The article then situates ACTA in the context of a recent trend of using bilateral, plurilateral and regional trade and investment agreements to circumvent the multilateral norm-setting process. It contends that this disturbing trend could …

Beyond Individualism In Law And Economics, Robert B. Ahdieh

Faculty Scholarship

The study of law and economics was built upon two pillars. The first is the familiar assumption of individual rationality. The second, less familiar, is the principle of methodological individualism. Over the last twenty years, law and economics has largely internalized behavioral critiques of the rationality assumption. By contrast, the field has failed to appreciate the implications of growing challenges to its methodological individualism. Where social norms shape individual choices, network externalities are strong, coordination is the operative goal, or information is a substantial determinant of value, a methodology strongly oriented to the analysis of individuals overlooks at least as …

The Syndrome Of The Efficiency Of The Common Law, Nuno Garoupa, Carlos Gomez Liguerre

Faculty Scholarship

Our article is a methodological critique of the recent legal origins literature. We start by showing that the legal origins literature cannot easily be based on the efficiency hypothesis of the common law. By debunking the relationship between the efficiency hypothesis and the legal origins literature, we are left with no consistent theory to explain the alleged inferiority of French civil law.

It is clear that the legal origins literature is based on a particular, biased selection of "cherry-picked" legal doctrines. A different selection of "cherry-picked" legal doctrines would produce a different assessment. We discuss examples that look at substantive …

The Rising Bar For Persecution In Asylum Cases Involving Sexual And Reproductive Harm, Fatma E. Marouf

Faculty Scholarship

This Article argues that there is a rising bar for establishing persecution in U.S. asylum cases involving sexual and reproductive' harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of cases where these patterns appear: (1)female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to whether …

The Uniform Law Commission And Cooperative Federalism: Implementing Private International Law Conventions Through Uniform State Laws, William H. Henning

Faculty Scholarship

The Uniform Law Commission (ULC) is a non-partisan, nonprofit, unincorporated association comprised of commissions formed in each state of the United States and also the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Its mission is "to promote uniformity in the law among the several States on subjects as to which uniformity is desirable and practicable." In the 117 years of its existence, the ULC has produced hundreds of uniform laws and forwarded them to the legislatures of its member jurisdictions for enactment, often with striking and sometimes with universal success. Its premier product, produced in partnership with …

Two Years After The Pennsylvania Supreme Court's Decision In Belden & Blake Corp. V. Commonwealth Department Of Conservation & Natural Resources: The Commonwealth's Struggle To Protect State Lands, Gina S. Warren, Krista M. Baron

Faculty Scholarship

The Marcellus Shale is by far the largest natural gas shale play in the United States' and the largest known shale deposit in the world.

Located beneath a large part of the Appalachian basin, it extends north into upstate New York, south into West Virginia and Virginia, and west into Ohio, and geologists estimate that it may contain as much as 489 trillion cubic feet of recoverable natural gas. The Commonwealth of Pennsylvania currently owns 117 parks and three conservation areas in Pennsylvania, making up 2.4 million acres of land - approximately 1.5 million of which are above the Marcellus …

Tefra-Partnership Refunds: Five Steps To Protect A Partner’S Rights, Mary A. Mcnulty, Robert D. Probasco, Carla C. Crapster

Faculty Scholarship

The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) established a unified procedure for determining the tax treatment of partnership items at the partnership level rather than the partner level. The TEFRA-partnership refund procedures differ from the refund claim procedures that apply to other taxpayers. For a TEFRA partnership, a refund claim is an administrative adjustment request (AAF) and a notice of deficiency is a notice of final partnership administrative adjustment (FPAA). Procedures for the assessment of additional tax attributable to partnership items have received much attention in recent years, but the procedures concerning refunds are complex and full …

Conflict Of Laws (2011), James P. George, Stephanie K. Marshall

Faculty Scholarship

The laws of states and nations collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey period from November 1, 2009 through September 30, 2010. The Article excludes cases involving federal-state conflicts; intrastate issues such as subject matter jurisdiction and venue; and conflicts in time such as the applicability of prior or subsequent law within a state. State and …

Mandatory Mediation And Its Variations, Nancy A. Welsh

Faculty Scholarship

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …