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Articles 1 - 30 of 37
Full-Text Articles in Law
Extended Preferences And Interpersonal Comparisons: A New Account, Matthew D. Adler
Extended Preferences And Interpersonal Comparisons: A New Account, Matthew D. Adler
Faculty Scholarship
No abstract provided.
From Pigs To Hogs, Stephen J. Choi, Mitu Gulati
From Pigs To Hogs, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
The question of whether, and to what extent, markets price contract terms in government bond issues has been one of considerable debate in the literature. We use a natural experiment thrown up by the Euro area sovereign debt crisis of 2010-2013 to test whether a particular set of contract terms – ones that gave an advantage to sovereign guaranteed bonds over garden variety sovereign bonds – was priced. These contract terms turned out to be important for the holders of guaranteed bonds during the Greek debt restructuring of 2012, where they helped the holders of guaranteed bonds escape the haircut …
Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang
Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang
Faculty Scholarship
Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …
Treaty Termination And Historical Gloss, Curtis A. Bradley
Treaty Termination And Historical Gloss, Curtis A. Bradley
Faculty Scholarship
The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …
Differentiating Among International Investment Disputes, Julie A. Maupin
Differentiating Among International Investment Disputes, Julie A. Maupin
Faculty Scholarship
Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …
Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener
Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener
Faculty Scholarship
Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue …
Advancing The Empirical Research On Lobbying, John M. De Figueiredo, Brian Kelleher Richter
Advancing The Empirical Research On Lobbying, John M. De Figueiredo, Brian Kelleher Richter
Faculty Scholarship
This essay identifies the empirical facts about lobbying which are generally agreed upon in the literature. It then discusses challenges to empirical research in lobbying and provides examples of empirical methods that can be employed to overcome these challenges—with an emphasis on statistical measurement, identification, and casual inference. The essay then discusses the advantages, disadvantages, and effective use of the main types of data available for research in lobbying. It closes by discussing a number of open questions for researchers in the field and avenues for future work to advance the empirical research in lobbying.
Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner
Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner
Faculty Scholarship
Game theory has been used to model large-scale social events — such as constitutional law, democratic stability, standard setting, gender roles, social movements, communication, markets, the selection of officials by means of elections, coalition formation, resource allocation, distribution of goods, and war — as the aggregate result of individual choices in interdependent decision-making. Game theory in this way assumes methodological individualism. The widespread observation that game theory predictions do not in general match observation has led to many attempts to repair game theory by creating behavioral game theory, which adds corrective terms to the game theoretic predictions in the hope …
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel
Faculty Scholarship
This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
Faculty Scholarship
This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …
Hiv Infrastructure Study Baton Rouge, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Casteel Scherger
Hiv Infrastructure Study Baton Rouge, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Casteel Scherger
Faculty Scholarship
No abstract provided.
Right-Skilling: Rabbis And The Rabbinic Role For A New Century, Barak D. Richman, Daniel Libenson
Right-Skilling: Rabbis And The Rabbinic Role For A New Century, Barak D. Richman, Daniel Libenson
Faculty Scholarship
This chapter applies Clayton Christensen's model of organizational innovation to Jewish contexts. It observes a parallel between the many challenges that currently confront U.S. healthcare and American Jewry: a mismatch in the skills acquired by professionals and the needs expressed by the broader public; expensive institutions with high fixed costs that are struggling to provide value and maintain sustainable revenues; a failure to respect individual autonomy and cultural mores; and a disenfranchised public that suffers from high costs and unmet demand for meaningful services. It then applies Christensen's adapted model for the healthcare sector to American Jewish institutions, suggesting reforms …
Book Review, Matthew D. Adler
Meeting The Challenges Of Instructing International Law Graduate Students In Legal Research, Nina E. Scholtz, Femi Cadmus
Meeting The Challenges Of Instructing International Law Graduate Students In Legal Research, Nina E. Scholtz, Femi Cadmus
Faculty Scholarship
Teaching international LL.M. students legal research offers its own peculiar challenges. The brevity of the LL.M. program and the limited time available for thoroughly introducing basic research concepts have made it particularly difficult, but the innovative and creative methods of instruction highlighted in this article have provided good solutions.
“Robbing Peter To Pay Paul”: Economic And Cultural Explanations For How Lower-Income Families Manage Debt, Laura M. Tach, Sara Sternberg Greene
“Robbing Peter To Pay Paul”: Economic And Cultural Explanations For How Lower-Income Families Manage Debt, Laura M. Tach, Sara Sternberg Greene
Faculty Scholarship
This article builds upon classic economic perspectives of financial behavior by applying the narrative identity perspective of cultural sociology to explain how lower-income families respond to indebtedness. Drawing on in-depth qualitative interviews with 194 lower-income household heads, we show that debt management strategies are influenced by a desire to promote a financially responsible, self-sufficient social identity. Families are reluctant to ask for assistance when faced with economic hardship because it undermines this identity. Because the need to pay on debts is less acute than the need to pay for regular monthly expenses like rent or groceries, debts receive a lower …
None Of The Laws But One, Neil S. Siegel
None Of The Laws But One, Neil S. Siegel
Faculty Scholarship
This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …
Missing Mcveigh, Michael E. Tigar
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Faculty Scholarship
In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …
“White Collar” Crimes, Samuel W. Buell
“White Collar” Crimes, Samuel W. Buell
Faculty Scholarship
In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …
Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young
Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young
Faculty Scholarship
No abstract provided.
Consumption, Risk And Prioritarianism, Matthew D. Adler, Nicolas Treich
Consumption, Risk And Prioritarianism, Matthew D. Adler, Nicolas Treich
Faculty Scholarship
In this paper, we study consumption decisions under risk assuming a prioritarian social welfare function, namely a concave transformation of individual utility functions. Under standard assumptions, there is always more current consumption under ex ante prioritarianism than under utilitarianism. Thus, a concern for equity (in the ex ante prioritarian sense) means less concern for the risky future. In contrast, there is usually less current consumption under ex post prioritarianism than under utilitarianism. We discuss the robustness of these results to learning, and to other forms of prioritarian social welfare functions.
Hawking Hyphens In Compound Modifiers, Joan Ames Magat
Hawking Hyphens In Compound Modifiers, Joan Ames Magat
Faculty Scholarship
The first principle of legal writing is surely its clarity — visible actors (unless the action matters more), uncluttered syntax, and, of course, logical structure. But the little things can matter to clarity, too — such as deliberate punctuation that signifies. In the language of law, in which compound nouns are rife, the reader can feel adrift as to where modifiers end and the noun begins. (Consider government-subsidized health flexible-spending arrangement without those hyphens.) Hyphens help. Whether an author cares to hyphenate the noun is his call; but hyphenating compound modifiers (also called phrasal adjectives, though they may include adverbs …
Tearing Out The Income Tax By The (Grass)Roots, Lawrence A. Zelenak
Tearing Out The Income Tax By The (Grass)Roots, Lawrence A. Zelenak
Faculty Scholarship
No abstract provided.
Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz
Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young
Faculty Scholarship
No abstract provided.
The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicolas Treich
The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicolas Treich
Faculty Scholarship
We examine how different welfarist frameworks evaluate the social value of mortality risk reduction. These frameworks include classical, distributively unweighted cost–benefit analysis—i.e., the “value per statistical life” (VSL) approach—and various social welfare functions (SWFs). The SWFs are either utilitarian or prioritarian, applied to policy choice under risk in either an “ex post” or “ex ante” manner. We examine the conditions on individual utility and on the SWF under which these frameworks display sensitivity to wealth and to baseline risk. Moreover, we discuss whether these frameworks satisfy related properties that have received some attention in the literature, namely equal value of …
Immigration's Family Values, Kerry Abrams, R. Kent Piacenti
Immigration's Family Values, Kerry Abrams, R. Kent Piacenti
Faculty Scholarship
No abstract provided.
Corruption Temptation, Guy-Uriel Charles
Corruption Temptation, Guy-Uriel Charles
Faculty Scholarship
In response to Professor Lawrence Lessig’s Jorde Lecture, I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Professor Lessig wants us to think about. I argue that Professor Lessig’s real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Professor Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted.
The Gathering Storm: Restructuring Sovereign Contingent Liabilities, Lee C. Buchheit, Mitu Gulati
The Gathering Storm: Restructuring Sovereign Contingent Liabilities, Lee C. Buchheit, Mitu Gulati
Faculty Scholarship
The contingent liabilities of a sovereign, such as guarantees of the debts of third parties, can normally be kept off the balance sheet of the sovereign guarantor. That is their charm. As the debt to GDP ratios of many developed countries approach red-zone levels, contingent liabilities are increasingly being favored over direct, on-the-balance-sheet, borrowings.
But what happens if a country carrying large contingent liabilities needs to restructure its debt? The borrower dare not leave its contingent claims out of the restructuring. To do so would risk undermining the financial predicates of the sovereign’s economic recovery program should the beneficiaries of …
Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton
Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton
Faculty Scholarship
In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …