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Full-Text Articles in Law

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster Jan 2006

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international ...


Inequality And Uncertainty: Theory And Legal Applications, Matthew D. Adler, Chris William Sanchirico Jan 2006

Inequality And Uncertainty: Theory And Legal Applications, Matthew D. Adler, Chris William Sanchirico

Faculty Scholarship

"Welfarism" is the principle that social policy should be based solely on individual well-being, with no reference to 'fairness" or "rights." The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attentioncall this the "ex ante/ex post" problem. The problem arises from the combination of uncertainty-an inevitable feature of real policy choice-and a social preference for equality. If the policymaker is not a utilitarian, but rather has a "social welfare function" that ...


Sosa, Customary International Law, And The Continuing Relevance Of Erie, Curtis A. Bradley, Jack L. Goldsmith, David H. Moore Jan 2006

Sosa, Customary International Law, And The Continuing Relevance Of Erie, Curtis A. Bradley, Jack L. Goldsmith, David H. Moore

Faculty Scholarship

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This "modern position" came under attack by so-called "revisionist" critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status ...


The King Of Rockingham County And The Original Bridge To Nowhere, Barak D. Richman Jan 2006

The King Of Rockingham County And The Original Bridge To Nowhere, Barak D. Richman

Faculty Scholarship

This chapter, reveals the story -- the clash of personalities, the economic tensions, and the political significance -- behind Rockingham County v. Luten Bridge Co. Since its publication in 1929, the opinion has proceeded to leave an impression on generations of law students. Luten Bridge, a staple in most contracts casebooks, is known today as the paradigmatic case that demonstrates the duty to mitigate damages in contract law, whereby a nonbreaching party is not compensated for performance that occurs after the other party announces an intention to breach. This chapter takes on three objectives: it identifies the case's original importance, uncovers ...


Fair Pay For Chief Executive Officers: Maximizing Firm Value By Minimizing Income Disparity, James D. Cox Jan 2006

Fair Pay For Chief Executive Officers: Maximizing Firm Value By Minimizing Income Disparity, James D. Cox

Faculty Scholarship

This article links the growing income disparity in America to a possible metric that can be used to better assess the appropriate level of executive compensation. The article reviews the intellectual, commercial, cultural, and judicial forces that have each contributed toward the significant rise in executive compensation. Of particular note is the unqualified failure of courts and outside directors to provide meaningful supervision of executive compensation. This failure in part reflects the failure of society to develop guidance regarding what is the appropriate level of compensation for executives of public companies. The article concludes by reviewing evidence that income disparity ...


Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar Jan 2006

Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar

Faculty Scholarship

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should ...


Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington Jan 2006

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills ...


The Rehnquist Court And The Death Penalty, Erwin Chemerinsky Jan 2006

The Rehnquist Court And The Death Penalty, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati Jan 2006

A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati

Faculty Scholarship

Response to Richard Sander, The Racial Paradox of the Corporate Law Firm, 84 North Carolina Law Review 1755 (2006)


Crossing Judge Parker’S Luten Bridge: Partisan Politics, Economic Visions, And Government Reform In Retrospect And Prospect, Peter G. Fish Jan 2006

Crossing Judge Parker’S Luten Bridge: Partisan Politics, Economic Visions, And Government Reform In Retrospect And Prospect, Peter G. Fish

Faculty Scholarship

Commentary on, Barak D. Richman, Jordi Weinstock & jason Mehta, A Bridge, a Tax Revolt, and the Struggle to Industrialize: The Story and Legacy of 'Rockingham County v. Luten Bridge Co.', 84 North Carolina Law Review 1841-1912 (2006)


Brown Ii: A Case Of Missed Opportunity?, Trina Jones Jan 2006

Brown Ii: A Case Of Missed Opportunity?, Trina Jones

Faculty Scholarship

No abstract provided.


For Lash: Who Asks The Right Questions, H. Jefferson Powell Jan 2006

For Lash: Who Asks The Right Questions, H. Jefferson Powell

Faculty Scholarship

A Tribute to Lewis H. LaRue


History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah Purdy Jan 2006

History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah Purdy

Faculty Scholarship

Comment on Carol Rose's 2005 Childress Lecture


A Tribute To Mel Shimm, Barak D. Richman Jan 2006

A Tribute To Mel Shimm, Barak D. Richman

Faculty Scholarship

No abstract provided.


Ecosystem Services And The Public Trust Doctrine: Working Change From Within, James Salzman, J.B. Ruhl Jan 2006

Ecosystem Services And The Public Trust Doctrine: Working Change From Within, James Salzman, J.B. Ruhl

Faculty Scholarship

No abstract provided.


When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2006

When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast Jan 2006

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.


Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins Jan 2006

Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.


Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins Jan 2006

Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.


The Complex Links Between Governance And Biodiversity, C. Barrett, C. Gibson, B. Hoffman, Mathew D. Mccubbins Jan 2006

The Complex Links Between Governance And Biodiversity, C. Barrett, C. Gibson, B. Hoffman, Mathew D. Mccubbins

Faculty Scholarship

We argue that two problems weaken the claims of those who link corruption and the exploitation of natural resources. The first is conceptual. Studies that use national level indicators of corruption fail to note that corruption comes in many forms, at multiple levels, and may or may not affect resource use. Without a clear causal model of the mechanism by which corruption affects resources, one should treat with caution any estimated relationship between corruption and the state of natural resources. The second problem is methodological: Simple models linking corruption measures and natural resource use typically do not account for other ...


Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher Jan 2006

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the ...


The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos Jan 2006

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather ...


Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler Jan 2006

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Welfare Polls: A Synthesis, Matthew D. Adler Jan 2006

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship

"Welfare polls" are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists.This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information ...


Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler Jan 2006

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler Jan 2006

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Immigration Status And The Best Interests Of The Child Standard, Kerry Abrams Jan 2006

Immigration Status And The Best Interests Of The Child Standard, Kerry Abrams

Faculty Scholarship

No abstract provided.


Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr. Jan 2006

Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr. Jan 2006

Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie Jan 2006

The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie

Faculty Scholarship

No abstract provided.