Law Commons^™

Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi

Faculty Working Papers

This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine …

Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich

Faculty Working Papers

This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …

The Mismatch Between Public Nuisance Law And Global Warming, David A. Dana

Faculty Working Papers

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting …

A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein

Faculty Working Papers

State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large …

Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos

Faculty Working Papers

In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court …

If Major Wars Affect (Judicial) Fiscal Policy, How & Why?, Nancy Staudt

Faculty Working Papers

This paper seeks to identify and explain the effects of major wars on U.S. Supreme Court decision-making in the context of taxation. At first cut, one might ask why we should even expect to observe a correlation between military activities and judicial fiscal policy. After all, the justices have no authority whatsoever to adopt funding laws intended to relieve the budgetary pressures that tend to emerge in times international crisis. The Court, however, is able to contribute to the wartime revenueraising efforts indirectly by adopting a pro-government stance in the cases it decides in wartime periods. As the probability of …

Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato

Faculty Working Papers

Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

Forum Shopping And The Infrastructure Of Federalism., James E. Pfander

Faculty Working Papers

The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …

Originalism: Lessons From Things That Go Without Saying, Robert William Bennett

Faculty Working Papers

After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who …

The Quest To Tax Interest Income: Stages In The Development Of International Taxation, Ilan Benshalom

Faculty Working Papers

The Article offers a new perspective on the way international income tax has developed from its nascency, 85 years ago, to the present day. Its main claim is that, due to the lack of a clear normative tax agenda, trade considerations unduly eroded the income tax base. Such trade considerations highlight the importance of reducing tax obstacles on trade and investment to liberalize and integrate international markets. These considerations penetrated international income tax discourse during the Cold War period, when liberalizing trade was part of a broader western agenda to establish dominance through the liberalization of international markets. The Article …

Natural Law - A Libertarian View, Anthony D'Amato

Faculty Working Papers

What follows from the following two propositions? Legal positivism views law as a command writ large. The commander is the person or group with the most power. Answer: this pernicious mind-set is responsible for our abandonment of personal liberty. For there can be no limit to the imagination and will power of the commander. The plenary jurisdiction of the commander paves the way for Big Government to move in and regulate every aspect of our lives and our privacy. The world wasn't always like this. Prior to the servility that positivism has induced, there was a now-forgotten secular natural law …

Moral Spillovers: The Effect Of Moral Violations On Deviant Behavior, Elizabeth Mullen, Janice Nadler

Faculty Working Papers

Two experiments investigated whether outcomes that violate people's moral standards increase their deviant behavior (the moral spillover effect). In Study 1, participants read about a legal trial in which the outcome supported, opposed or was unrelated to their moral convictions. Relative to when outcomes supported moral convictions, when outcomes opposed moral convictions people judged the outcome to be less fair, were more angry, were less willing to accept the outcome, and were more likely to take a borrowed pen. In Study 2, participants who recalled another person's moral violation were more likely to cheat on an experimental task relative to …

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …

Exclusionary Eminent Domain, David A. Dana

Faculty Working Papers

This Article explores the phenomenon of "exclusionary eminent domain" – the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, …

Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish

Faculty Working Papers

In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support …

A Comprehensive Solution For A Targeted Problem: A Critique Of The Eu’S Home State Taxation And Ccctb Initiatives, Ilan Benshalom

Faculty Working Papers

This Article examines the European Commission's Home State Taxation and CCCTB initiatives. It argues that both proposals undermine the long-term objective of attaining a consolidated European corporate tax regime. It suggests an alternative strategy, which offers a comprehensive formulary-tax-allocation-solution in one of the hard to tax sectors, such as the financial sector. This strategy requires more efforts and political risk-taking, but would better promote the long-term objective of a consolidated EU corporate tax regime.

An edited version of this article is scheduled to be published in a future issue of European Taxation (an IBFD publication).

Eminent Domain And The Psychology Of Property Rights: Proposed Use, Subjective Attachment, And Taker Identity, Janice Nadler, Shari Seidman Diamond

Faculty Working Papers

The U.S. Supreme Court's decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court's earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, …

Is International Law Coercive?, Anthony D'Amato

Faculty Working Papers

Can international law be enforced against a state? Against a superpower? Various current theories answer in the negative: dualism, consent, domestication, soft law, the New Haven school, and exceptionalism. But this Article claims that international law is enforced all the time by unilateral or multilateral reprisals. The stability of international law over time is a function of the successful working of the reprisal system. In sum, international law is a coercive order.

Why Is International Law Binding?, Anthony D'Amato

Faculty Working Papers

Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …

Law, Psychology & Morality, Kenworthey Bilz, Janice Nadler

Faculty Working Papers

In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay …

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

Gatekeeper Incentive Compensation, Sharon Hannes

Faculty Working Papers

A massive wave of corporate fraud at the beginning of the twenty first century exposed the failure of corporate gatekeepers. The Sarbanes-Oxley legislation accordingly targeted gatekeepers, primarily auditors, by imposing strict regulation and enhanced independence guidelines. This legislative remedy is of disputable benefit while its costs have been huge. This paper maintains that a certain type of auditor incentive compensation could work better than regulation. Under such an alternative scheme, auditors would defer a portion of the payment they receive from the client firm, which would be used to purchase shares in the client after their tenure as auditor has …

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

Faculty Working Papers

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Faculty Working Papers

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe

Faculty Working Papers

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …

Fifteen And Thirty Five--Class Warfare In Subchapter K Of The Internal Revenue Code: The Taxation Of Human Capital Upon The Receipt Of A Proprietary Interest In A Business Enterprise, Philip F. Postlewaite

Faculty Working Papers

Service providers (aka executives) to partnerships and to corporations confront a number of choices as to how their compensatory arrangement may be structured and the tax consequences thereof. In the simplest case, an individual may render services to an enterprise in return for cash payments over the period of service. In this non-equity setting, the issue is straightforward and non-controversial. The service provider is treated as receiving ordinary income for services rendered. The return on his or her expenditure of human capital is taxed at progressive rates.

Once the relationship between the service provider and the enterprise becomes more complicated …

The Quest To Tax Financial Income In A Global Economy: Emerging To An Allocation Phase, Ilan Benshalom

Faculty Working Papers

The taxation of the income derived from financial assets and transactions was always a daunting black hole in the income tax regime. In an integrated global market, tax authorities find it hard to tax financial income because of the high demand for financial investments and the mobility, fungibility, and tax-sensitivity of financial assets. Many of the current approaches to solving international tax allocation problems fail to see that financial transactions present special challenges and therefore their allocation treatment requires a special solution. The Article focuses on the most conceptually intriguing and significant problem associated with the allocation of financial income: …