Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 141

Full-Text Articles in Law

American Law (United States), Ralf Michaels Jan 2006

American Law (United States), Ralf Michaels

Faculty Scholarship

No abstract provided.


Through A Glass Darkly: Van Orden, Mccreary And The Dangers Of Transparency In Establishment Clause Jurisprudence, Laura S. Underkuffler Jan 2006

Through A Glass Darkly: Van Orden, Mccreary And The Dangers Of Transparency In Establishment Clause Jurisprudence, Laura S. Underkuffler

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.


How Community Institutions Create Economic Advantage: Jewish Diamond Merchants In New York, Barak D. Richman Jan 2006

How Community Institutions Create Economic Advantage: Jewish Diamond Merchants In New York, Barak D. Richman

Faculty Scholarship

This paper argues that Jewish merchants have historically dominated the diamond industry because of their ability to reliably implement diamond credit sales. Success in the industry requires enforcing executory agreements that are beyond the reach of public courts, and Jewish diamond merchants enforce such contracts with a reputation mechanism supported by a distinctive set of industry, family, and community institutions. An industry arbitration system publicizes promises that are not kept. Intergenerational legacies induce merchants to deal honestly through their very last transaction, so that their children may inherit valuable livelihoods. And ultra-Orthodox Jews, for whom participation in their communities is ...


Testamentary Incorrectness: A Review Essay, Paul D. Carrington Jan 2006

Testamentary Incorrectness: A Review Essay, Paul D. Carrington

Faculty Scholarship

Reviewing Samuel P. King & Randall W. Roth, Broken Trust: Greed, Mismanagement, & Political Manipulation at America's Largest Charitable Trust (2006)


Federalism Cases In The October 2004 Term, Erwin Chemerinsky Jan 2006

Federalism Cases In The October 2004 Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Mediation Of The Snake River Basin Adjudication, Francis Mcgovern Jan 2006

Mediation Of The Snake River Basin Adjudication, Francis Mcgovern

Faculty Scholarship

No abstract provided.


The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah Purdy Jan 2006

The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah Purdy

Faculty Scholarship

No abstract provided.


Does The Plaintiff Matter?: An Empirical Analysis Of Lead Plaintiffs In Securities Class Actions, James D. Cox, Randall S. Thomas, Dana Kiku Jan 2006

Does The Plaintiff Matter?: An Empirical Analysis Of Lead Plaintiffs In Securities Class Actions, James D. Cox, Randall S. Thomas, Dana Kiku

Faculty Scholarship

With the enactment of the Private Securities Litigation Reform Act of 1995 (PSLR) the U.S. Congress introduced sweeping substantive and procedural reforms for securities class actions. A central provision of the Act is the lead plaintiff provision, which creates a rebuttable presumption that the investor with the largest financial interest in a securities fraud class action should be appointed the lead plaintiff for the suit. The lead plaintiff provision was adopted to encourage a class member with a large financial stake to become the class representative. Congress expected that such a plaintiff would actively monitor the conduct of a ...


Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels Jan 2006

Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels

Faculty Scholarship

The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence. This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decision's enforceability elsewhere (indirect jurisdiction), are logically independent from each ...


The Promise (And Limits) Of Neuroeconomics, Jedediah Purdy Jan 2006

The Promise (And Limits) Of Neuroeconomics, Jedediah Purdy

Faculty Scholarship

Neuroeconomics - the study of brain activity in people engaged in tasks of reasoning and choice - looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This essay explains what is most exciting about the new field and lays out some specific research tasks for it. By enabling researchers to view the mind at work, neuroeconomics calls into question the value of a methodological premise of twentieth-century empiricism, sometimes called positivism or behaviorism: that people are black boxes to ...


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 ...


Breach Of Fiduciary Duty: On Justifiable Expectations Of Loyalty And Their Consequences, Deborah A. Demott Jan 2006

Breach Of Fiduciary Duty: On Justifiable Expectations Of Loyalty And Their Consequences, Deborah A. Demott

Faculty Scholarship

This paper covers three distinct but inter-related topics. These are: (1) the functions served by characterizing breach of fiduciary duty as a tort; (2) how best to define a fiduciary relationship in light of the range of situations in which one party is subject to a fiduciary duty to another; and (3) implications and questions that follow from the fact that many contemporary fiduciaries are organizations that assign individual employees or other agents to act on behalf of clients to whom the organization itself owes fiduciary duties. The paper begins by examining how breach of fiduciary duty is characterized by ...


Automatic Perfection Of Sales Of Payment Intangibles: A Trap For The Unwary, Steven L. Schwarcz Jan 2006

Automatic Perfection Of Sales Of Payment Intangibles: A Trap For The Unwary, Steven L. Schwarcz

Faculty Scholarship

Under Section 9-309(3) of the Uniform Commercial Code, sales of "payment intangibles" are automatically perfected without the requirement of filing financing statements. Originally intended as a concession to the banking industry (to perfect sales of loan participations without filing), this provision has become a trap for the unwary-including unwary banks. It misleads those who think they're buying payment intangibles (and thus need not file to perfect) only to find out, too late, that a court has construed that arcane definition too narrowly. It also undermines the ability to know one's priority in purchased or pledged payment intangibles ...


Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner Jan 2006

Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner

Faculty Scholarship

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements ...


Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel Jan 2006

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Faculty Scholarship

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control. While it ...


In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl Jan 2006

In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl

Faculty Scholarship

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those ...


A Transaction Cost Economizing Approach To Regulation: Understanding The Nimby Problem And Improving Regulatory Responses, Barak D. Richman, Christopher Boerner Jan 2006

A Transaction Cost Economizing Approach To Regulation: Understanding The Nimby Problem And Improving Regulatory Responses, Barak D. Richman, Christopher Boerner

Faculty Scholarship

This paper develops a transaction cost economic model for regulation and applies the model to environmental siting regulations designed to overcome NIMBY (Not In My Back Yard) political opposition. Negotiations between developers and resistant local communities to site waste facilities, such as landfills or solid waste incinerators, can be characterized as a contracting problem. A rudimentary application of the Coase theorem suggests that developers should be able to compensate communities adequately for hosting a waste facility, but rarely do such negotiations find success. Transaction costs associated with the requisite negotiations, communication, and implementation of the projects preclude efficient bargaining, and ...


Private Law And The State: Comparative Perceptions And Historic Observations, Ralf Michaels, Nils Jansen Jan 2006

Private Law And The State: Comparative Perceptions And Historic Observations, Ralf Michaels, Nils Jansen

Faculty Scholarship

The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions ...


Two Paradigms Of Jurisdiction, Ralf Michaels Jan 2006

Two Paradigms Of Jurisdiction, Ralf Michaels

Faculty Scholarship

No abstract provided.


A Field Of Green? The Past And Future Of Ecosystem Services, James Salzman Jan 2006

A Field Of Green? The Past And Future Of Ecosystem Services, James Salzman

Faculty Scholarship

In recent years, interest in ecosystem services has exploded. From cover stories in the New York Times and The Economist, websites connecting buyers and sellers of ecosystem services, and the comprehensive UN-sponsored Millennium Assessment - a report on the state of the world's ecosystem services - to a statement by the U.S. Secretary of Agriculture calling for "a future where credits for clean water, greenhouse gases, or wetlands can be traded as easily as corn or soybeans," the ecosystem services approach has firmly arrived in the environmental policy world. But what does this approach entail and where is it going ...


‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl Jan 2006

‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl

Faculty Scholarship

While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush's campaign in 1988, successive administration have pledged to ensure there would be "no net loss" of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental ...


“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas Jan 2006

“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

The Supreme Court's March 2005 decision in 'Exxon Mobil Corp. v. Saudi Basic Industries Corp.' substantially limited the "Rooker-Feldman" doctrine, under which lower federal courts largely lack jurisdiction to engage in what amounts to de facto review of state-court decisions. Exxon Mobil's holding is quite narrow--entry of a final state-court judgment does not destroy federal-court jurisdiction already acquired over parallel litigation. But the Court's articulation of when Rooker-Feldman applies, and its approach in deciding the case, have significant implications for several aspects of Rooker-Feldman jurisprudence. Chief among our claims is that although the Court did not expressly ...


The Texture Of Loyalty, Deborah A. Demott Jan 2006

The Texture Of Loyalty, Deborah A. Demott

Faculty Scholarship

This paper examines whether and how reforms in corporate governance structures and practices in the United States may reshape conventional notions of the fiduciary duties owed by independent directors of public companies. The paper identifies two focal points for the evolution of directors' fiduciary duties. First, various reforms in corporate governance assign more specific responsibilities to directors, arguably reorienting directors' loyalty to due discharge of a specified function along with ongoing or residual duties of loyalty owed in more general terms to the corporation and its shareholders. The relationships among these specific duties and more general ones may be complex ...


From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs Jan 2006

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The standard ...


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.


Case Comment, Sanchez-Llamas V. Oregon, Curtis A. Bradley Jan 2006

Case Comment, Sanchez-Llamas V. Oregon, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky Jan 2006

A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern Jan 2006

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle ...


The Evolution Of Asbestos Bankruptcy Trust Distribution Plans, Francis Mcgovern Jan 2006

The Evolution Of Asbestos Bankruptcy Trust Distribution Plans, Francis Mcgovern

Faculty Scholarship

The evolution of asbestos litigation from the early 1970s to the present has become the source of much analysis. One commentator divides this history into several phases: the heroic phase, bureaucratic floundering, adaptation and maturity, search for global settlement, expansion of the number of cases, and legislative reform in a new era. A neglected aspect of the history of asbestos litigation has been the evolution of asbestos bankruptcy trust distribution plans. Since 1982 there have been more than 70 corporations which have filed bankruptcy proceedings because of their exposure to asbestos liability. As these corporations emerge from bankruptcy, their plans ...