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Full-Text Articles in Law

The Diminishing Duty Of Loyalty, Julian Velasco Sep 2018

The Diminishing Duty Of Loyalty, Julian Velasco

Journal Articles

Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty of loyalty is enforced far more rigorously than the duty of care. The justification for this dichotomy is twofold. First, differential treatment is appropriate because of the relative urgencies of the underlying subject matter: loyalty issues pose greater risks than do care issues. Second, the deference ...


Teaching The Lochner Era, Barry Cushman Jul 2018

Teaching The Lochner Era, Barry Cushman

Journal Articles

This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.


A Consumer Decision-Making Theory Of Trademark Law, Mark Mckenna Jan 2012

A Consumer Decision-Making Theory Of Trademark Law, Mark Mckenna

Journal Articles

The consumer search costs theory has dominated discussion of trademark law for the last several decades. According to this theory, trademark law aims to increase consumer welfare by reducing the cost of shopping for goods or services, and it accomplishes this goal by preventing uses of a trademark that might confuse consumers about the source of the goods with which the mark is used. This conceptual frame is wrong, and it is complicit in most of trademark law’s extraordinary expansion. “Search costs” is not sufficiently precise; many types of search costs are irrelevant to consumer behavior, and even when ...


The Federal Reserve As Last Resort, Colleen Baker Jan 2012

The Federal Reserve As Last Resort, Colleen Baker

Journal Articles

The Federal Reserve, the central bank of the United States, is one of the most important and powerful institutions in the world. Surprisingly, legal scholarship hardly pays any attention to the Federal Reserve or to the law structuring and governing its legal authority. This is especially curious given the amount of legal scholarship focused on administrative agencies that do not have anywhere near as critical a domestic and international role as that of the Federal Reserve. At the core of what the Federal Reserve does and should do is to conduct monetary policy so as to safeguard pricing, including that ...


Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly Jan 2012

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Journal Articles

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like ...


Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson Jan 2011

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Journal Articles

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify ...


Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard Jan 2011

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard

Journal Articles

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries ...


Behavioral Antitrust: A New Approach To The Rule Of Reason After Leegin, William J. Rinner, Avishalom Tor Jan 2011

Behavioral Antitrust: A New Approach To The Rule Of Reason After Leegin, William J. Rinner, Avishalom Tor

Journal Articles

The Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which replaced the longstanding per-se rule against resale price maintenance (RPM) with a rule of reason approach, has resurrected the debate over RPM. Legal and economic proponents of this practice again point to its potential procompetitive benefits, while RPM detractors emphasize its possible anticompetitive consequences. Despite their disagreements regarding the overall RPM evaluation, however, scholars, the Court, and the limited empirical data appear near-unanimous in agreeing that such arrangements can either increase or decrease efficiency. Consequently, the RPM debate predominantly revolves around theoretical assertions regarding ...


The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor Jan 2008

The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor

Journal Articles

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that ...


Rankings, Standards, And Competition: Task Vs. Scale Comparisions, Avishalom Tor, Stephen M. Garcia Jan 2007

Rankings, Standards, And Competition: Task Vs. Scale Comparisions, Avishalom Tor, Stephen M. Garcia

Journal Articles

Research showing how upward social comparison breeds competitive behavior has so far conflated local comparisons in task performance (e.g. a test score) with comparisons on a more general scale (i.e. an underlying skill). Using a ranking methodology (Garcia, Tor, & Gonzalez, 2006) to separate task and scale comparisons, Studies 1–2 reveal that an upward comparison on the scale (e.g. being surpassed in rank), rather than in the mere task (e.g., being outperformed), is necessary to generate competition among rivals proximate to a standard (e.g. ranked #3 vs. 4, near “the top”); rivals far from a standard (e.g. ranked #203 vs. 204), on the other hand, still tend to cooperate. Study 3 illustrates this finding with player trades in Major League Baseball. Study 4 further shows how an implicit scale comparison, instead of the commonly assumed explicit task comparison, may account for those classical competition findings in the literature. Study ...


Pilgrim Law: Overcoming False Consciousness Through The Witness Of London's Economic Migrants, Vincent D. Rougeau Jan 2007

Pilgrim Law: Overcoming False Consciousness Through The Witness Of London's Economic Migrants, Vincent D. Rougeau

Journal Articles

The article discusses the author's view on the works and beliefs of Robert E. Rodes Jr. He considered faith and professional life as the powerful link on Rodes works and cited three points of reflection on the matter which includes on Rodes' concept of "Pilgrim Law" that has been influential on the author's works, thinking about the relationship between the professional roles of a lawyer and a call to a lived Christian faith. He believed that the Rodes' book "Pilgrim Law" took a formidable task on extending the principles of the theology of liberation to American jurisprudence and ...


On Contractual Defaults And Experimental Law And Economics, Avishalom Tor Jan 2007

On Contractual Defaults And Experimental Law And Economics, Avishalom Tor

Journal Articles

Sloof et al.'s [2006] elegant study of default breach remedies illustrates both the potential and limitations of experimental law and economics (ELE). Potentially, the rigorous methodology of experimental economics can provide fully controlled tests of relationships among legally significant variables. Human behavior is context-dependent, however. The validity of ELE would therefore be limited if it were, for example, to disregard legal institutions and context in an automatic adherence to all conventions of experimental economics.


The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett Jan 2006

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Journal Articles

This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners ...


Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig Jan 2006

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody ...


Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez Jan 2006

Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez

Journal Articles

Social comparison theories typically assume a comparable degree of competition between commensurate rivals on a mutually important dimension. In contrast, however, the following set of studies reveals that the degree of competition between such rivals depends on their proximity to a standard. Studies 1-3 test the prediction that individuals become more competitive and less willing to maximize profitable joint gains when they and their commensurate rivals are highly ranked (e.g., #2 vs. #3) than when they are not (e.g., #202 vs. #203). Studies 4-6 then generalize these findings, showing that the degree of competition increases not only for ...


"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly Jan 2006

"We Shall Not Be Moved": Urban Communities, Eminent Domain And The Socioeconomics Of Just Compensation, James J. Kelly

Journal Articles

If eminent domain is to serve true community development, statutory reforms must limit its propensity to abuse while still preserving its effectiveness. The first part of this article offers a normative legal theory of eminent domain as constrained by both the availability of alternative means of achieving public objectives and the inability of some condemnees to be made whole by cash compensation. The consideration of the land needs of both the condemnor and the condemnee is crucial to the respective evaluations of public use and just compensation as limitations on eminent domain. In the context of urban redevelopment, the theory ...


A Crisis Of Caring: A Catholic Critique Of American Welfare Reform, Vincent D. Rougeau Jan 2003

A Crisis Of Caring: A Catholic Critique Of American Welfare Reform, Vincent D. Rougeau

Journal Articles

The current deterioration of the American economy is bringing new attention to the problem of poverty in the United States. After falling over the last few years, the number of Americans living in poverty has begun to rise once again. Notwithstanding the achievements of recent "welfare reforms," the American poor continue to be numerous by any measure.

Unfortunately, decades of affluence have exacerbated American tendencies to view liberal concepts such as freedom, autonomy, tolerance, and choice in ways that accentuate personal autonomy over community integration. These liberal values have been increasingly unhinged from strong countervailing principles like duty and responsibility ...


Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar Jan 2002

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to ...


The Fable Of Entry: Bounded Rationality, Market Discipline, And Legal Policy, Avishalom Tor Jan 2002

The Fable Of Entry: Bounded Rationality, Market Discipline, And Legal Policy, Avishalom Tor

Journal Articles

Legal scholars have recently advanced a behavioral approach to the law and economics school of thought, replacing the traditionally assumed rational actor with an empirically based, boundedly rational decision maker. In response, advocates of traditional law and economics have asserted that boundedly rational behavior is of little significance for the analysis of economic activities in market environments, most notably because competitive pressures will eliminate such behavior. This article argues, however, that bounded rationality has important effects on the market even under conditions of intense competition. Through a study of the competition among new entrants into industry, this analysis examines the ...


"Money Can't Buy Me Love": A Contrast Between Damages In Family Law And Contract, Margaret F. Brinig Jan 2002

"Money Can't Buy Me Love": A Contrast Between Damages In Family Law And Contract, Margaret F. Brinig

Journal Articles

No abstract provided.


Lending Discsrimination: Economic Theory, Econometric Evidence, And The Community Reinvestment Act, Vincent D. Rougeau, Keith N. Hylton Jan 1996

Lending Discsrimination: Economic Theory, Econometric Evidence, And The Community Reinvestment Act, Vincent D. Rougeau, Keith N. Hylton

Journal Articles

No abstract provided.


Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig Jan 1994

Comment On Jana Singer's Alimony And Efficiency, Margaret F. Brinig

Journal Articles

No abstract provided.


Valuation Of Closely-Held Stock For Federal Tax Purposes: Approach To An Objective Method, Joseph O'Meara, Lyle R. Johnson, Eli Shapiro Jan 1951

Valuation Of Closely-Held Stock For Federal Tax Purposes: Approach To An Objective Method, Joseph O'Meara, Lyle R. Johnson, Eli Shapiro

Journal Articles

No abstract provided.


Co-Operative Marketing--Statutes Providing Penalty Against Third Persons Who Induce Breach Of Marketing Contracts, Thomas F. Broden Jan 1947

Co-Operative Marketing--Statutes Providing Penalty Against Third Persons Who Induce Breach Of Marketing Contracts, Thomas F. Broden

Journal Articles

No abstract provided.