Law Commons^™

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

Carlisle Moody

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Glynn Lunney

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …

Good For You, Bad For Us: The Financial Disincentive For Net Demand, Jim Rossi, Michael P. Vandenbergh

Michael Vandenbergh

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine …

Facing The Facts: An Empirical Study Of The Fairness And Efficiency Of Foreclosures And A Proposal For Reform, Debra Pogrund Stark

Debra Pogrund Stark

Lenders view real estate foreclosures as too expensive and time consuming a process which needlessly increases the costs of making loans. Others complain that the foreclosure process fails to adequately protect the borrower's equity (the value of the property in excess of the debt secured by the property) in the mortgaged property.

This article tests these views by gathering new data on the fairness and efficiency of the foreclosure process. Based on the data collected (which confirms some assumptions but disproves others), the author proposes a reform of the foreclosure process to promote the interest of both lenders and borrowers. …

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Robert B. Ahdieh

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s undoing.

To help navigate …

Taking Finance Seriously: How Debt Financing Distorts Bidding Outcomes In Corporate Takeovers, Robert P. Bartlett Iii

Robert Bartlett

Economic analysis of corporate takeovers has traditionally advocated legal doctrines that ensure a target company in a takeover contest is acquired by the bidder willing to pay the most for it. The reason stems from the conventional assumption that a bidder's offer price should reflect its ability to put a target's assets to productive use. This Article challenges this assumption by turning to the success of private equity firms in outbidding publicly traded, strategic bidders during the takeover wave of 2004 to 2007. Using standard valuation modeling, this Article reveals how a critical component of any bidder's valuation of a …

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

Jeffrey L Harrison

This article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. Part II places happiness research in the context of past efforts to assess efficiency standards. Part III outlines the schism between efficiency and happiness and examines whether they can be reconciled. Part IV discusses the problems of relying on direct measures of happiness. The concept of decisional equity is described and examined in Part V.

Shedding The Uniform: Beyond A "Uniform System Of Citation" To A More Efficient Fit, Susie Salmon

Susie Salmon

This article brings a fresh perspective to the ongoing conversation about legal citation format: By highlighting the costs that the fetishization of "perfect" citation format imposes on legal education, the legal profession, and our system of justice, this article encourages us to seize the opportunity that technology presents to implement a more just, sane philosophy of legal citation. Tracing the history of legal citation from its origins in Rome, this article thoroughly debunks any notions of one citation manual's inherent superiority as a citation tool and instead suggests a return to first principles: an approach to citation that ensures accuracy, …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The Cathedral' At Twenty-Five: Citations And Impressions, James Krier, Stewart Schwab

Stewart J Schwab

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

Why International Catch Shares Won't Save Ocean Biodiversity, Holly Doremus

Holly Doremus

Skepticism about the efficacy and efficiency of regulatory approaches has produced a wave of enthusiasm for market-based strategies for dealing with environmental conflicts. In the fisheries context, the most prominent of these strategies is the use of “catch shares,” which assign specific proportions of the total allowable catch to individuals who are then free to trade them with others. Catch shares are now in wide use domestically within many nations, and there are increasing calls for implementation of internationally tradable catch shares. Based on a review of theory, empirical evidence, and two contexts in which catch shares have been proposed, …

The Theory Of Law “As Claim” And The Inquiry Into The Sources Of Law. Bruno Leoni In Prospect, Daniele Bertolini

daniele bertolini

This paper presents a systematic analysis of the theory of law "as claim" through a critical review of Bruno Leoni’s work. I argue that this philosophical theory provides a useful methodological framework for the analysis of law-making processes. I also demonstrate how Leoni’s critique of legislation offers insights into the efficient institutional response to the growing demand for law that has emerged from the increasing complexity of contemporary societies — insights that are particularly relevant in an age characterized by continuing technological changes and profound social mutations that challenge the existing organization of the sources of law. Finally, I contend …

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

The Messenger Model: Don't Ask, Don't Tell?, Jeffrey L. Harrison

Jeffrey L Harrison

This article makes the case that the messenger model is either tacitly or inadvertently a "don't ask, don't tell" policy when it comes to competitor cooperation. In addition, this article presents an economic framework that explains how such a policy may benefit health care consumers. Finally, it is suggested that the "don't ask, don't tell" policy has created an area of per se legality that precludes an examination designed to distinguish consumer-benefiting practices from those that provide no benefit.

Regulation, Deregulation, And Happiness, Jeffrey L. Harrison

Jeffrey L Harrison

Happiness, in general, is in many respects the topic du jour. A great deal of theoretical and empirical work has been devoted to dissecting it. Studies of happiness have crossed over to law, and the result is an addition to the long list of the list of “law and” interdisciplinary areas. In fact, in 2010, Eric Posner and Matthew Alder presented an excellent book of readings the title of which is Law and Happiness. Peter Henry Huang has written the definitive survey of law and happiness literature. My own writing has reflected on the promise of happiness research and the …

Practice Lean! Implementing Technology-Driven Lean Six Sigma In A Law Firm, Frank A. Urbanic

frank a urbanic

No abstract provided.

The Long Quest For Legal Efficiency. On The Illusion Of A Process-Free Economic Analysis Of Law, Daniele Bertolini

daniele bertolini

In this paper I attempt to reconstruct and scrutinize the long lasting debate on economic efficiency as a legal concern, and to show that the prevailing idea of economic efficiency - which is exclusively referring to the contents of legal rules as disconnected from the features of the lawmaking process - misses the essence of the discipline. I demonstrate that conventional output-oriented approach is susceptible to the following criticisms: (1) it is affected by logical circularity and/or logical incompleteness; (2) it does not provide any guarantee of social welfare increases; (3) it does not account for the presence of losers; …

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance …

Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich

Thomas J. Stipanowich

A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …

Soft Law In The Organization And General Conduct Of Commercial Arbitration Proceedings, Thomas Stipanowich

Thomas J. Stipanowich

This commentary examines the growing use of Soft Law - non-binding guidelines that currently play an important role in organizing and conducting commercial arbitration proceedings. Standards such as the UNCITRAL Notes on Organizing Arbitral Proceedings, the ICC Techniques for Controlling Time and Costs in Arbitration, and the Protocols for Expeditious, Cost-Effective Commercial Arbitration have evolved from professional discourse regarding process management and more particular concerns about cost, delay and inefficiency in arbitration. Collectively, these guidelines reflect a growing recognition that deliberate and proactive effort by business users, counsel, arbitrators and provider institutions is critical to making the most of arbitration …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

Property Rights Arrangement In Emerging Natural Resources: A Case Study Of China’S Nationalization Of Wind And Sunlight, Jianlin Chen, Jiongzhe Cui

Jianlin Chen

The passage of the Heilongjiang Province Regulation on Climate Resources Survey and Protection (the “Regulation”) that regulates wind and solar energy generation sparked a public furor because it contains a provision that stipulates, “climate resources are owned by the state.” As a case study of this regulatory attempt to manage emerging natural resources, this Article makes the following three arguments. First, the “nationalization” provision in the Regulation is legally compatible with Chinese law that conceives of public property as state-owned property and not as property that requires public access. Second, a clear designation of the state as the manager of …

Quantitative Model For Measuing Line-Drawing Inequity, Bradley T. Borden

Bradley T. Borden

The law draws lines. It draws lines between manslaughter and murder, negligence and gross negligence, speeding and driving legally, and capital gains and ordinary income. Those lines invariably cause undesirable results. In particular, lines in the law cause inequity because they impose different treatment on similarly situated persons. Despite this inequity, analysts generally embrace the quantitative comforts of inefficiency analysis. This Article introduces a quantitative model for measuring inequity. Consequently, the preference for quantitative measures no longer justifies the disdain for inequity analysis. Instead, democratic and philosophical efforts to assess laws should embrace now-quantifiable inequity analyses as the analytical tools …

Del “Descontrol” De La Producción Normativa En Materia De Contratación Pública En Colombia / The “Chaos” Of Public Procurement Legislation In Colombia, Javier Rincón Salcedo

Javier Rincón Salcedo

El presente artículo busca presentar una reflexión sobre los efectos que se derivan de la disfuncionalidad en la expedición de normas en materia de contratación pública. Una reflexión que concentrada en el análisis de las actividades de interventoría y supervisión contractual, procura demostrar cómo las disfuncionalidades normativas impiden alcanzar estándares adecuados de eficiencia en el desarrollo de la función pública. A su vez, aproximándose desde una perspectiva normativa a la reflexión sobre las consecuencias prácticas de las disfuncionalidades de tipo reglamentario y de control, el artículo busca dejar en evidencia que, contrario a lo afirmado por los órganos gubernamentales, las …

Legal Services Programs Can Avoid Service Reductions By Improving Efficiency And Effectiveness, Wayne Moore

wayne moore

This article describes how legal services for low-income people can be maintained or even increased despite recent decreases in funding, if some legal services programs increased their efficiency and effectiveness. Data is presented that indicates that some programs are much less efficient than others. Accepted methods are described for boosting staff output and efficiency without working faster or shortchanging time spent with clients. This can be accomplished using better technology (document generators), methods (telephone conversations can take much less time than face-to-face conversations), and systems (assigning common, routine cases to specially trained staff who use streamlined processes). Effectiveness is defined …

Agencies In Crisis?: An Examination Of State And Federal Agency Emergency Powers, Babette Boliek

Babette Boliek

That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised—subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and “deossification” of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical …

Reassessing The Case For Judicial Review: Judges As Agents And Judges As Trustees, Arthur Dyevre

Arthur Dyevre

Lawyers, constitutional theorists and political philosophers continue to disagree over the merits and legitimacy of judicial review. Borrowing insights from delegation theory, industrial organization as well as empirical accounts of judicial behaviour, this paper assesses two approaches to the justification of judicial review: (1) Following the Principal-Agent Model, judges are given the authority to review and invalidate legislation to enforce the choices of the constitutional framers over recalcitrant legislative majorities. (2) By contrast, under the Trustee Model, judges are given the power of judicial review to act as trustees of the political system: their task is to ensure that the …

Rummaging Through The Bottom Of Pandora’S Box: Funding Predatory Pricing Through Contemporaneous Recoupment, Shaun D. Ledgerwood, Wesley J. Heath

Shaun D. Ledgerwood

Predatory pricing doctrine is currently a dead area of the law. To proceed beyond summary judgment, a plaintiff must prove the predation created a "dangerous probability" of supracompetitive pricing as the mechanism for recouping the losses “invested” in the predation. This requires proof that the predator sold products below its average variable cost and raised an entry barrier that ultimately enabled the recoupment of profits at some later time. We offer an alternative to this two-phased recoupment model. In this paper we show that a multiproduct retailer can target loss leading behavior in a market segment to punish or eliminate …

Consent In Context: Fulfilling The Promise Of International Arbitration (Multiparty, Multi-Contract, And Non-Contract Arbitration), Preface By Jan Paulsson, Karim Youssef

Dr. Karim Y Youssef

No abstract provided.