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Full-Text Articles in Law
A Problem Of Remedy: Responding To Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman
A Problem Of Remedy: Responding To Treasury's (Lack Of) Compliance With Administrative Procedure Act Rulemaking Requirements, Kristin Hickman
Articles
In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change …
Lawmakers As Norms Entrepreneurs, Emanuela Carbonara, Francesco Parisi, Georg Von Wangenheim
Lawmakers As Norms Entrepreneurs, Emanuela Carbonara, Francesco Parisi, Georg Von Wangenheim
Articles
No abstract provided.
Learning From The Limitations Of Deterrence Research, Michael Tonry
Learning From The Limitations Of Deterrence Research, Michael Tonry
Articles
No abstract provided.
The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski
The Malign Effects Of Drug And Crime Control Policies On Black Americans, Michael Tonry, Matthew Melewski
Articles
No abstract provided.
Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger
Across Curricular Boundaries: Searching For A Confluence Between Marital Agreements And Indian Land Transactions, Judith T. Younger
Articles
No abstract provided.
The Frontier Of Eminent Domain, Alexandra Klass
The Frontier Of Eminent Domain, Alexandra Klass
Articles
The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated 'economic development takings' the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …
Rethinking Trademark Fair Use, William Mcgeveran
Rethinking Trademark Fair Use, William Mcgeveran
Articles
The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various fair use doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, …
The Hidden Bias Of The Vienna Convention, Vincy Fon, Francesco Parisi
The Hidden Bias Of The Vienna Convention, Vincy Fon, Francesco Parisi
Articles
No abstract provided.
Wipo-Wto Relations And The Future Of Global Intellectual Property Norms, Ruth Okediji
Wipo-Wto Relations And The Future Of Global Intellectual Property Norms, Ruth Okediji
Articles
The intense scholarly debate about the effects of harmonized global intellectual property (IP) rules under the TRIPS Agreement has yet to consider what role an appropriate organizational framework should play in facilitating development of IP norms to address new global challenges. The prevailing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) will remain unchanged despite the primacy of the TRIPS Agreement and the explicit mandate of the WTO for global IP regulation. Indeed, with respect to the supply of public goods, only the WTO - not WIPO - has the formal legal mandate to …
Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase
Limiting Excessive Prison Sentences Under Federal And State Constitutions, Richard Frase
Articles
No abstract provided.
Privatizing Labor Law: Neutrality/Card Check Agreements And The Role Of The Arbitrator, Laura Cooper
Privatizing Labor Law: Neutrality/Card Check Agreements And The Role Of The Arbitrator, Laura Cooper
Articles
No abstract provided.
Takings And Trespass: Trespass Liability For Precondemnation Entries, Ann Burkhart
Takings And Trespass: Trespass Liability For Precondemnation Entries, Ann Burkhart
Articles
When the government, a utility company, or another entity with the power of eminent domain enters land before acquiring it, the courts are extremely divided about whether the landowner can sue for trespass or only for inverse condemnation. A court's decision on this issue has tremendous practical implications. For example, it substantially affects the remedies that are available to the landowner, including its right to recover the property. The court's decision also has significant public policy implications because it involves the balance between government sovereignty over land and protection of private property rights. eminent domain, takings, inverse condemnation, trespass, government …
Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan
Carbon Sequestration And Sustainability, Alexandra B. Klass, Sara E. Bergan
Articles
This Symposium Essay explores the question of whether the developing technology of geologic carbon capture and sequestration (CCS), which involves capturing CO2 emissions from industrial sources and power plants and sequestering them underground, is consisting with principles of sustainable development. This Essay concludes that while CCS on its own may not be consistent with basic principles of sustainability, it presents a potential opportunity to create sufficiently deep cuts in greenhouse gas (GHG) emissions to allow the transition to a more sustainable future.
Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson
Climate Change And Carbon Sequestration: Assessing A Liability Regime For The Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson
Articles
As the world struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is "carbon capture and sequestration" (CCS) which consists of capturing carbon dioxide (CO2) emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient …
Horizontal Federalism, Allan Erbsen
Horizontal Federalism, Allan Erbsen
Articles
This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their …
The Myth Of Discovery, Claire Hill
The Myth Of Discovery, Claire Hill
Articles
This review essay of Barry Schwartz’s Paradox of Choice discusses how Schwartz’s thesis that more choice is not always better should inform economists’ increasing acknowledgment that preferences are constructed, not fixed. In this companion piece to my more detailed consideration of the subject of constructed preferences, I argue that what makes the assumption of fixed preferences possible is a myth, the myth of discovery - that preferences exist to be discovered. Once we acknowledge that preferences are as much made as found, and that the raw materials from which they are made are scarcely stable, the assumption of fixed preferences …
The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill
The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill
Articles
Economists typically assume that preferences are fixed - that people know what they like and how much they like it relative to all other things, and that this rank-ordering is stable over time. But this assumption has never been accepted by any other discipline. Economists are increasingly having difficulty arguing that the assumption is true enough to generate useful predictions and explanations. Indeed, law and economics scholars increasingly acknowledge that preferences are constructed, and that the law itself can help construct preferences. Still, fixed preferences are often treated as a normative ideal: Even if people don't have fixed preferences, they …
Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill
Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill
Articles
Legal scholarship has long concerned itself with race, gender, and other core identities. Economics, and law and economics, is now turning its attention to other dimensions of identity. What is identity? Identity is "a person's sense of self."' Identity has genetic, cultural and neural bases grounded in an evolutionary process.' Identity helps individuals make sense of themselves and provides a feeling of grounding or belonging. There are many potential identity dimensions, including gender, facial features, and height, as well as religion, ethnicity, social-group affiliation, sports-team loyalty, family, profession, artistic preferences, culinary preferences, and place of origin. The significance of different …
Terror Conflated?, Fionnuala Ní Aoláin
Terror Conflated?, Fionnuala Ní Aoláin
Articles
This review of Eric Posner & Adrian Vermeule's book Terror in the Balance Security, Liberty and the Courts is constructed in part as a response not only to this scholarly work but also to recent executive and policy directions which suggest that substantial deference should be given to the executive in times of crisis, that courts should defer competence and that any harms inflicted upon civil liberties by executive action are overstated by interests with little competence in the core arena of security.
Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill
Commentary: The Trajectory Of Complex Business Contracting In Latin America, Claire Hill
Articles
By some accounts, Latin American contract documentation increas- ingly resembles U.S. contract documentation.1 This is puzzling, given that the U.S. documentation has developed in a broader institutional context particular to the U.S. The context includes a particular type of legal train- ing, particular types of law firms, particular legal institutions, and so on. Why is this occurring, and what effect will it have on contracting practice in Latin America? This commentary briefly considers these issues; it con- siders as well some broader implications of international convergence in contracting practices.
Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser
Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser
Articles
This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing …
Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell
Bylaw Reforms For Delaware's Corporation Law, Brett Mcdonnell
Articles
Written as part of a symposium on the Delaware General Corporation Law in the twenty-first century, this paper suggests four reforms to the DGCL. Each of these reforms would help solidify the ability of shareholders to effectively adopt bylaws that regulate decisionmaking procedure and corporate governance. The four reforms are: 1. Amend section 109(b), and perhaps 141(a), to clarify that bylaws may set procedural and governance rules, but may not be used to make substantive business decisions; 2. Amend section 141(a) to provide that shareholder bylaw or certificate provisions which limit board discretion thereby shield the board from fiduciary duty …
Straight Acting, Dale Carpenter
Straight Acting, Dale Carpenter
Articles
Early in the race for the Democratic presidential nomination, one occasionally heard black critics of Barack Obama question his racial credentials. Was he really black? Was he black enough? These critics noted that Obama’s mother was white, that his father was born in Africa and thus had not lived through segregation and the American civil rights struggle, that he was light-skinned, that he talked like a white person, and enjoyed the sort of educational privileges more commonly enjoyed by whites than by blacks.1
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Articles
Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the …
Toward A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter
Toward A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter
Articles
The questions of whether, when, and where an author has "published" her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes …
Two Goals For Executive Compensation Reform, Brett Mcdonnell
Two Goals For Executive Compensation Reform, Brett Mcdonnell
Articles
Most corporate law scholars who suggest reforming executive compensation worry about corporate governance problems that arise out of poor compensation design. Most politicians who suggest reforming executive compensation seem as or more worried about growing economic inequality. This essay briefly considers two arguments justifying legal scholars in ignoring the concern with inequality. The first argument says that we should address inequality concerns only through tax and transfer policy. This essay responds that politics may dictate sometimes trying to reduce inequality through other means as well. The second argument claims that high pay for the top executives of public corporations has …
Classified Information Leaks And Free Speech, Heidi Kitrosser
Classified Information Leaks And Free Speech, Heidi Kitrosser
Articles
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and …
Keynote Address: International Standard-Setting On The Human Rights Responsibilities Of Businesses, David Weissbrodt
Keynote Address: International Standard-Setting On The Human Rights Responsibilities Of Businesses, David Weissbrodt
Articles
It is a great honor to be invited to my alma mater to speak at this confer- ence highlighting the human rights responsibilities of transnational corporations and to be selected to receive this year's Stefan A. Riesenfeld Award for my con- tributions in the field of international law.
Remedies For Undocumented Noncitizens In The Workplace: Using International Law To Narrow The Holding Of Hoffman Plastic Compounds, Inc. V. Nlrb, David Weissbrodt
Remedies For Undocumented Noncitizens In The Workplace: Using International Law To Narrow The Holding Of Hoffman Plastic Compounds, Inc. V. Nlrb, David Weissbrodt
Articles
In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court denied the National Labor Relations Act (NLRA) back-pay claims of a worker wrongfully discharged for union organizing.1 The Supreme Court's 2002 decision reasoned that the worker should not be able to recover back pay under the NLRA because he was a noncitizen and not entitled to em- ployment. 2 The Inter-American Court of Human Rights and the International Labor Organization (ILO) Freedom of Association Committee have rejected the Hoffman decision and criticized the United States for its discrimination against noncitizens.3
Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell
Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell
Articles
This paper argues for employee primacy in corporate governance. "Employee primacy" has two elements: ultimate employee control over the corporation, and an objective function of maximizing employee welfare. In methodology, the argument draws upon both economics, but understood more broadly than in most corporate law scholarship, and upon civic republican ideas. The paper presents four different arguments favoring employee primacy. (1) Employee primacy is likely to create the most surplus within the corporation due to incentive effects and the wealth of information that employees possess. (2) Corporations characterized by employee primacy are more likely to be socially responsible, and hence …