Law Commons^™

Codifying Custom, Timothy Meyer

Faculty Scholarship

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Marriage Fraud, Kerry Abrams

Faculty Scholarship

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework …

Aggregation And Constitutional Rights, Brandon L. Garrett

Faculty Scholarship

Constitutional rights can impact large groups, yet most plaintiffs in civil rights cases bring individual claims. Critics of the Supreme Court’s decisions regarding class actions, such as the decision last Term in Dukes v. Wal-Mart, have argued that the Court is generally limiting the ability of plaintiffs to bring class actions through procedural limitations, such as the Wal-Mart Court’s heightening of the commonality requirement. I trace the problem deeper into the substance of constitutional doctrine. The Court has defined certain constitutional rights to require highly individualized inquiries. For example, Fourth Amendment excessive force claims, the bread and butter of constitutional …

Habeas Corpus And Due Process, Brandon L. Garrett

Faculty Scholarship

The writ of habeas corpus and the right to due process have long been linked together, but their relationship has never been more unsettled or important. Following the September 11, 2001 attacks, the United States detained hundreds of suspected terrorists who later brought legal challenges using the writ. In the first of the landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures a court must follow. Scholars assumed due process would govern the area. Yet in Boumediene v. Bush, the Court did not take the due …

Eyewitnesses And Exclusion, Brandon L. Garrett

Faculty Scholarship

The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial using photo arrays or lineups. Such courtroom displays have been accepted for so long that their role in the U.S. Supreme Court’s due process jurisprudence regulating eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year …

The Evolution Of Contractual Terms In Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using …

Becoming A Legal Scholar, Samuel W. Buell

Faculty Scholarship

There is now a literature on how to become a law professor. The first book-length treatment of the subject, Becoming A Law Professor, displays a common fault of this literature in directing candidates’ focus on process at the expense of substance. The present body of material on the market for new legal academics does not persuade candidates of the necessity of locating their agendas and voices as scholars, much less does it show them how to go about that vital search. It also risks contributing to a tendency of credentialing processes to standardize resumes without improving outcomes. A second-generation literature …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Hidden Costs? Malpractice Allegations And Defensive Medicine Among Cardiac Surgeons, Barak D. Richman, Marco Huesch

Faculty Scholarship

This article evaluates the impact of private allegations of malpractice against cardiac surgeons on their patients’ outcomes and characteristics. While tort law may impact observable physician costs, malpractice allegations also impose hidden costs that could also affect physician behavior. We employ a large and multi-year panel dataset and patient-level analysis to ascertain whether malpractice allegations influence a surgeon’s practicing behavior. Using a generalized difference-in-difference model that controls for unobserved patient heterogeneity, clustering of patients within surgeon offices, contemporaneous expected risk, and other patient variables, we measure whether an allegation of malpractices affects a physician’s service intensity and use of healthcare …

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

Betting Big: Value, Caution And Accountability In An Era Of ­Large Banks And Complex Finance, Lawrence G. Baxter

Faculty Scholarship

Big banks are controversial. Their supporters maintain that they offer products, services and infrastructure that smaller banks simply cannot match and enjoy unprecedented economies of scale and scope. Detractors worry about the risks generated by big banks, their threats to financial stability, and the way they externalize costs of operation to the public. This article explains why there is no conclusive argument one way or the other and why simple measures for restricting the danger of big banks are neither plausible nor effective.

The complex ecology of modern finance and the management and regulatory challenges generated by ultra-large banking, however, …

Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai

Faculty Scholarship

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Is Now The Time For Major Federal Sentencing Reform?, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller

Faculty Scholarship

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …

Book Review, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Stakeholding Through The Permanent Fund Dividend: Fitting Practice To Theory, Christopher L. Griffin Jr.

Faculty Scholarship

Alaska’s Permanent Fund Dividend (PFD) is the United States’ most significant, if not its only attempted, experiment with universal asset policies. This chapter helps clarify where the PFD fits within the larger portfolio of economic rights and obligations guaranteed by the liberal state. Is the program a realization of “real-freedom-for-all” basic income, or might it have foreshadowed Bruce Ackerman and Anne Alstott’s Stakeholder Society decades before their proposal emerged? I argue that neither categorization is entirely correct or entirely mistaken. Core features of the PFD demonstrate Alaska’s implicit belief in stakeholding but currently fall short of the sweeping citizenship agenda …

Sovereign Debt Restructuring Options: An Analytical Comparison, Steven L. Schwarcz

Faculty Scholarship

The recent financial woes of Greece, Ireland, Portugal, and other nations have reinvigorated the debate over whether to bail out defaulting countries or, instead, restructure their debt. Bailouts are expensive, both for residents of the nation being bailed out and for parties providing the bailout funds. Because the IMF, which is subsidized by most nations (including the United States), is almost always involved in country debt bailouts, we all share the burden. Yet bailouts are virtually inevitable under the existing international framework; defaults are likely to have systemic consequences, whereas an orderly debt restructuring is currently impractical. This article analyzes …

From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Faculty Scholarship

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” …

Rights To And Not To, Joseph Blocher

Faculty Scholarship

When and why should a “right to” include a “right not to”? If a person has a right to engage in an activity or to receive a particular form of procedural protection, under what circumstances should he also have a right not to engage in that activity or to refuse that process? The basic project of this Article is to show why these questions are important in American constitutional law, to explore how doctrine and scholarship have implicitly and sometimes awkwardly dealt with them, and to suggest normative frameworks with which they can be answered.

The Use And Abuse Of Special-Purpose Entities In Public Finance, Steven L. Schwarcz

Faculty Scholarship

States increasingly are raising financing indirectly through special-purpose entities (SPEs), variously referred to as authorities, special authorities, or public authorities. Notwithstanding their long history and increasingly widespread use, relatively little is known or has been written about these entities. This article examines state SPEs and their functions, comparing them to SPEs used in corporate finance. States, even more than corporations, use these entities to reduce financial transparency and avoid public scrutiny, seriously threatening the integrity of public finance. The article analyzes how regulation could be designed in order to control that threat while maintaining the legitimate financing benefits provided by …

The Right Not To Keep Or Bear Arms, Joseph Blocher

Faculty Scholarship

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have. The Article concludes - albeit with some important qualifications - that a right not to keep or bear arms is …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …

Making A Voluntary Greek Debt Exchange Work, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

Within the next couple of months, the Greek government, is supposed to persuade private creditors holding about EUR 200bn in its bonds to voluntarily exchange their existing bonds for new bonds that pay roughly 50 percent less. This may work with large creditors whose failure to participate in a debt exchange could trigger a Greek default, but may not persuade smaller creditors, who will be told that their claims will continue to be fully serviced if they do not participate in the exchange. This paper proposes an approach to dealing with this free rider problem that exploits the fact that …

In-House Counsel’S Role In The Structuring Of Mortgage-Backed Securities, Steven L. Schwarcz, Shaun Barnes, Kathleen G. Cully

Faculty Scholarship

The authors introduce the financial crisis and the role played by mortgage-backed securities. Then describe the controversy at issue: whether, in order to own and enforce the mortgage loans backing those securities, a special-purpose vehicle “purchasing” mortgage loans must take physical delivery of the notes and security instruments in the precise manner specified by the sale agreement. Focusing on this controversy, the authors analyze (i) the extent, if any, that the controversy has merit; (ii) whether in-house counsel should have anticipated the controversy; and (iii) what, if anything, in-house counsel could have done to avert or, after it arose, to …

Regulating Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

Inaugural Address for Boston University Review of Banking & Financial Law's Inaugural Symposium: “Shadow Banking” February 24, 2012.

Although shadow banking is said to be huge, estimated at over $60 trillion, it is not well defined. This short and accessible paper attempts to define shadow banking by identifying its overall scope and its basic characteristics. Based on the definition derived, the paper also conceptually examines how shadow banking can be regulated to try to maximize its efficiencies while minimizing its risks.

Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient …

Controlling Financial Chaos: The Power And Limits Of Law, Steven L. Schwarcz

Faculty Scholarship

This Essay examines how law can help to control financial chaos. To that end, regulation should strive to not only maximize economic efficiency within the financial system but also protect the financial system itself. Any regulatory framework for achieving these goals, however, will be imperfect and have tradeoffs. Increasing financial complexity has created information failures that even disclosure cannot remedy, whereas law-imposed standardization would have its own flaws. Bounded human rationality limits the effectiveness of even otherwise ideal laws. Furthermore, the increasing dispersion of financial risk is undermining monitoring incentives. We also do not yet fully understand how systemic risk …