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Full-Text Articles in Law

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress. That then raises the two questions of whether Congress could decide expel Puerto Rico (give it “independence”) or is legally required to give it statehood (“accession”).

The answers are not obvious. International law, we argue, suggests ...


U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley Jan 2018

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a ...


Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo Dec 2017

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo

Faculty Scholarship

This Article examines recent financial technology (“fintech”) developments to diagnose the federal regulatory institutional framework surrounding innovation. Startups offer artificially intelligent financial assistants, touchless payments, and other potentially game-changing products for individuals. Yet unlike more lightly regulated industries such as retail goods, in consumer finance barriers to entry have insulated the largest businesses from competition. Regulatory insulation helps explain why “Too Big To Fail” banks have become bigger, U.S. innovation has lagged that of foreign countries, and consumers pay higher prices. Taking an institutional lens to this problem reveals an overlooked shortcoming in financial regulation: the organizational design of ...


Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak Dec 2017

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying ...


Not Too Salt-Y: The Disparate Federal Income Tax Treatment Of Business And Non-Business State And Local Taxes, Michael S. Knoll Nov 2017

Not Too Salt-Y: The Disparate Federal Income Tax Treatment Of Business And Non-Business State And Local Taxes, Michael S. Knoll

Faculty Scholarship

The Tax Cuts and Jobs Act, H.R. 1, would eliminate the federal income tax deduction for nonbusiness state and local taxes while maintaining the deduction for business state and local taxes. That disparate treatment has generated a storm of negative commentary. In this short essay, I consider whether the federal tax law should allow a deduction for business state and local taxes assuming that there is no deduction for nonbusiness state and local taxes. I argue that investors and businesses, including pass-through businesses, should be allowed to deduct state and local property and sales taxes, but not general income ...


The Progressives: Racism And Public Law, Herbert J. Hovenkamp Nov 2017

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

Faculty Scholarship

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that ...


The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll Oct 2017

The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll

Faculty Scholarship

2018 marks the 60th anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment. Widely hailed as the foundation of modern finance, their article, which purports to demonstrate that a firm’s value is independent of its capital structure, is little known by lawyers, including legal academics. That is unfortunate because the Modigliani-Miller capital structure irrelevancy proposition (when inverted) provides a framework that can be extremely useful to legal academics, practicing attorneys and judges.


The Federal Rules Of Inmate Appeals, Catherine T. Struve Oct 2017

The Federal Rules Of Inmate Appeals, Catherine T. Struve

Faculty Scholarship

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management ...


Progressive Antitrust, Herbert J. Hovenkamp Oct 2017

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship

Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...


Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp Oct 2017

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

Faculty Scholarship

“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...


An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak Oct 2017

An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak

Faculty Scholarship

An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions in New Jersey surveys emissions and energy trends, describes a “deep decarbonization pathway” for the state, and identifies the types of policies that would be necessary to achieve those reductions. Many of the policies address the power and transportation sectors, which account for more than 60 percent of total greenhouse gas emissions from New Jersey. The report also includes options for improving building efficiency, reducing methane leaks from natural gas infrastructure, restoring natural carbon sinks in forests and wetlands, and incorporating equity considerations to address the needs of frontline ...


Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp Oct 2017

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

Faculty Scholarship

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...


Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon Sep 2017

Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon

Faculty Scholarship

The Dodd-Frank Act of 2010 mandated a number of regulatory reforms including a requirement that large U.S. public companies provide their shareholders with the opportunity to cast a non-binding vote on executive compensation. The “say on pay” vote was designed to rein in excessive levels of executive compensation and to encourage boards to adopt compensation structures that tie executive pay more closely to performance. Although the literature is mixed, many studies question whether the statute has had the desired effect. Shareholders at most companies overwhelmingly approve the compensation packages, and pay levels continue to be high.

Although a lack ...


Of Law And Other Artificial Normative Systems, Mitchell N. Berman Sep 2017

Of Law And Other Artificial Normative Systems, Mitchell N. Berman

Faculty Scholarship

Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may ...


The Ecology Of Transparency Reloaded, Seth F. Kreimer Sep 2017

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued ...


Understanding The Failure Of Health-Care Exceptionalism In The Supreme Court's Obamacare Decision, Abigail Moncrieff Sep 2017

Understanding The Failure Of Health-Care Exceptionalism In The Supreme Court's Obamacare Decision, Abigail Moncrieff

Faculty Scholarship

On June 28, 2012, a mere century after the first presidential proposal for national health insurance, the Supreme Court issued a resounding victory for President Obama and for health-care reform generally, upholding the Patient Protection and Affordable Care Act against a serious constitutional challenge. Nevertheless, the Court also struck a potential blow to future health-care reform efforts. A majority of the Court refused to accept the Solicitor General’s argument that health care is a unique market with unique regulatory needs that justify special constitutional treatment. The failure of health-care exceptionalism in the Court’s opinion might render future reform ...


Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark Nevitt, Robert V. Percival Sep 2017

Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark Nevitt, Robert V. Percival

Faculty Scholarship

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet they differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System (ATS), a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets ...


Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway Sep 2017

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway

Faculty Scholarship

None available.


Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel Sep 2017

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

Faculty Scholarship

This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to ...


Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll Sep 2017

Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll

Faculty Scholarship

A wave of corporate inversions by U.S. firms over the past two decades has generated substantial debate in academic, business, and policy circles.

The core of the debate hinges on a couple of key economic questions: Do U.S. tax laws disadvantage U.S.-domiciled companies relative to their foreign competitors? And, if so, do inversions improve the competitiveness of U.S. multinational firms both abroad and at home?

There is unfortunately little, if any, empirical work directly determining whether U.S.-based MNCs are currently tax-disadvantaged compared to their foreign rivals, or measuring the amount by which (if ...


Presidents, Parliaments, And Legal Change: Quantifying The Effect Of Political Systems In Comparative Environmental Law, Sari Graben, Eric Biber Sep 2017

Presidents, Parliaments, And Legal Change: Quantifying The Effect Of Political Systems In Comparative Environmental Law, Sari Graben, Eric Biber

Faculty Scholarship

No abstract provided.


Measuring The Costs And Benefits Of Patent Pools, Robert P. Merges, Michael Mattioli Sep 2017

Measuring The Costs And Benefits Of Patent Pools, Robert P. Merges, Michael Mattioli

Faculty Scholarship

No abstract provided.


"Law And Economics Versus Economic Analysis Of Law.", Keith Hylton Sep 2017

"Law And Economics Versus Economic Analysis Of Law.", Keith Hylton

Faculty Scholarship

I agree with Calabresi’s general distinction between Economic Analysis of Law and Law and Economics. However, these broad categories may obscure important differences between types of law and economics scholarship. I would distinguish positive economic analysis from normative economic analysis, and positivist legal analysis from nonpositivist analysis. The four categories generated by these distinctions provide a more fine-grained map of the styles of reasoning in law and economics, and has implications for the future of law and economics.


Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert Aug 2017

Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert

Faculty Scholarship

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different ...


Antitrust And The Design Of Production, Herbert J. Hovenkamp Aug 2017

Antitrust And The Design Of Production, Herbert J. Hovenkamp

Faculty Scholarship

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output ...


Intellectual Property And Competition, Herbert J. Hovenkamp Aug 2017

Intellectual Property And Competition, Herbert J. Hovenkamp

Faculty Scholarship

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...


Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min Aug 2017

Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min

Faculty Scholarship

Recently, courts have embraced the contractarian theory that corporate charters and bylaws constitute a “contract” between the shareholders and the corporation and have been more willing to uphold bylaws unilaterally adopted by the directors. This paper examines the contractarian theory by drawing a parallel between amending charters and bylaws, on the one hand, and amending contracts, on the other. In particular, the paper compares the right to unilaterally amend corporate bylaws with the right to unilaterally modify contract terms, and highlights how contract law imposes various limitations on the modifying party’s discretion. More generally, when the relationship of contracting ...


Law And Psychology Grows Up, Goes Online, And Replicates, Kristin Firth, David A. Hoffman, Tess Wilkinson-Ryan Aug 2017

Law And Psychology Grows Up, Goes Online, And Replicates, Kristin Firth, David A. Hoffman, Tess Wilkinson-Ryan

Faculty Scholarship

Over the last thirty years, legal scholars have increasingly deployed experimental studies, particularly hypothetical scenarios, to test intuitions about legal reasoning and behavior. That movement has accelerated in the last decade, facilitated in large part by cheap and convenient Internet participant recruiting platforms like Amazon Mechanical Turk. The widespread use of MTurk subjects, a practice that dramatically lowers the barriers to entry for experimental research, has been controversial. At the same time, law and psychology’s home discipline is experiencing a public crisis of confidence widely discussed in terms of the “replication crisis.” At present, law and psychology research is ...


Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson Aug 2017

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around ...