Law Commons^™

Supervising Managed Services, James B. Speta

Faculty Working Papers

Many Internet-access providers simultaneously offer Internet access and other services, such as traditional video channels, video on demand, voice calling, and other emerging services, through a single, converged platform. These other services—which can be called "managed services" because the carrier offers them only to its subscribers in a manner designed to ensure some quality of service—in many circumstances will compete with services that are offered by unaffiliated parties as applications or services on the Internet. This situation creates an important interaction effect between the domains of Internet access and managed services, an effect that has largely been missing from the …

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Strategies Of Muslim Family Law Reform, Kristen Stilt, Swathi Gandhavadi

Faculty Working Papers

Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and controversy. In general, this change has been considered one of "reform," defined loosely as the adoption of national laws to modify the rules of Islamic law (fiqh) that had been applicable and predominant in the particular country in an effort to improve the rights of women and children. In most Muslim-majority contexts, however, the rules of fiqh remain particularly (and in some jurisdictions uniquely) relevant in the area of family law, and the reform process is usually presented as …

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

An Inquiry Into The Perception Of Materiality As An Element Of Scienter Under Sec Rule 10b-5, Allan Horwich

Faculty Working Papers

In any private action or enforcement proceeding based on SEC Rule 10b-5 the plaintiff, including the Securities and Exchange Commission, must prove that the defendant engaged in deception or manipulation with scienter, that is, an intent to deceive (which lower courts have held encompasses reckless conduct). Where the gravamen of the claim is deception, the deception must have been material. A fact, including forward-looking information, is material if there is a substantial likelihood that a reasonable shareholder would consider the fact important in making his investment decision. This Article demonstrates that in an appropriate case an assessment of whether the …

Why Jack Balkin Is Disgusting, Andrew Koppelman

Faculty Working Papers

Yale Law Professor Jack Balkin didn't win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn't possibly defend the paradigmatic departure from the Constitution's original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly …

Bad News For Mail Robbers: The Obvious Constitutionality Of Health Care Reform, Andrew Koppelman

Faculty Working Papers

Two federal district judges have invalidated the so-called "individual mandate" in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation's ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

The Limits Of Constructivism: Can Rawls Condemn Female Genital Mutilation?, Andrew Koppelman

Faculty Working Papers

The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A …

Doma, Romer, And Rationality, Andrew Koppelman

Faculty Working Papers

It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country's attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. …

The New American Civil Religion: Lesson For Italy, Andrew Koppelman

Faculty Working Papers

American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

If The Shoe Fits They Might Acquit: The Value Of Forensic Science Testimony, Jonathan Koehler

Faculty Working Papers

The probative value of forensic science evidence (such as a shoeprint) varies widely depending on how the evidence and hypothesis of interest is characterized. This paper uses a likelihood ratio (LR) approach to identify the probative value of forensic science evidence. It argues that the "evidence" component should be characterized as a "reported match," and that the hypothesis component should be characterized as "the matching person or object is the source of the crime scene sample." This characterization of the LR forces examiners to incorporate risks from sample mix-ups and examiner error into their match statistics. But how will legal …

Proficiency Tests To Estimate Error Rates In The Forensic Sciences, Jonathan Koehler

Faculty Working Papers

A proficiency test is an assessment of the performance of laboratory personnel using samples whose sources are known to the proficiency test administrator but unknown to the examinee. Proficiency tests can help identify reasonable first pass estimates for the rates at which various types of errors occur. It is crucial to obtain error rate estimates because the reliability and probative value of forensic science evidence is inextricably linked to the rates at which examiners make errors. Without such information, legal decision makers have no scientifically meaningful way of thinking about the risk of false identification and false non-identification associated with …

Safety First? The Role Of Emotion In Safety Product Betrayal Aversion, Jonathan Koehler, Andrew D. Gershoff

Faculty Working Papers

Consumers often face decisions about whether to purchase products that are intended to protect them from possible harm. However, safety products rarely provide perfect protection and sometimes "betray" consumers by causing the very harm they are intended to prevent. Examples include vaccines that may cause disease and air bags that may explode with such force that they cause death. Expanding research on betrayal aversion, this study examines the role of emotions in consumers' tendency to choose safety options that provide less overall protection in order to eliminate a very small probability of harm due to safety product betrayal. In five …

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

The Dignity, Rights, And Responsibilities Of The Jury: On The Structure Of Normative Argument, Robert P. Burns

Faculty Working Papers

Many theorists follow an inevitably circular method in evaluating legal institutions and practices. "Considered judgments of justice" embedded in practices and institutions in which we have a high level of confidence can serve as partial evidence for the principles with which they are consistent, principles that can then have broader implications. Conversely, principles that we have good reason to embrace can serve as partial justification for institutions and practices with which they are consistent. This is the heart of Rawls' notion of "reflective equilibrium," where we "work at both ends" to justify institutions, practices, and principles. This method is applicable …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Federalism And Subsidiarity: Perspectives From U.S. Constitutional Law, Steven G. Calabresi, Lucy D. Bickford

Faculty Working Papers

We live in an Age of Federalism. All over the world nation states are withering away as free trade and defense functions are assumed by transnational entities and as power is devolved to local entities. As nation states disappear, a central question arises as to what functions each level of government ought to perform in federal unions? One response is that federations ought to be governed by the principle of subsidiarity: i.e., that matters ought to be decided at the lowest or least centralized level of government that is competent to handle a problem. We agree with this view and …

Partisan Conflicts Over Presidential Authority, Jide Okechuku Nzelibe

Faculty Working Papers

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at …

Cleaning The Murky Safe Harbor For Forward-Looking Statements: An Inquiry Into Whether Actual Knowledge Of Falsity Precludes The Meaningful Cautionary Statement Defense, Allan Horwich

Faculty Working Papers

Congress included a safe harbor for forward-looking statements in the 1995 Private Securities Litigation Reform Act. This affords certain issuers and other specified persons limited protection from civil liability for damages under the Securities Act of 1933 and the Securities Exchange Act of 1934 when the projections or objectives in a forward-looking statement are not realized, i.e., turn out to be false. The safe harbor contains two principal elements, in addition to protection for "immaterial" statements: one prong where projections are accompanied by "meaningful cautionary statements," the second prong where the plaintiff fails to prove that the speaker made the …

Individualization Claims In Forensic Science: Still Unwarranted, Jonathan Koehler, Michael J. Saks

Faculty Working Papers

In a 2008 paper published in the Vanderbilt Law Review entitled "The Individualization Fallacy in Forensic Science Evidence," we argued that no scientific basis exists for the proposition that forensic scientists can "individualize" an unknown marking (such as a fingerprint, tire track, or handwriting sample) to a particular person or object to the exclusion of all others in the world. In this special issue of the Brooklyn Law Review, we clarify, refine, and extend some of the ideas presented in Fallacy. Some of the refinements are prompted by Professor David Kaye's paper, also in this issue of the Review, in …

Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman

Faculty Working Papers

Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law in Iraq …

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

The Political Economy Of Taxation: A Critical Review Of A Classic, Nancy Staudt

Faculty Working Papers

This book review reexamines Henry Simons famous contribution to the tax policy literature, "Personal Income Taxation: The Definition of Income as Problem in Fiscal Policy" (1938). It argues that while Professor Simons was concerned with tax fairness and the redistribution of income, he adopted a definition of income that worked to undermine the interests of many of the poor individuals in society that he sought to support.

The Judicial Power Of The Purse: How Courts Fund National Defense In Times Of Crisis (An Introduction), Nancy Staudt

Faculty Working Papers

This introduction to a forthcoming book (Spring 2011) briefly describes judges' hidden purse powers along with a theory for how and why judges will utilize these powers to keep the nation safe in times of foreign policy crisis. Ultimately, the book-length project investigates the empirical implications of the theory with both qualitative and quantitative data and finds substantial support for the idea that judges's use their financial powers differently in times of peace and in times of crisis

Tax Theory And "Mere Critique": A Reply To Professor Zelenak, Nancy Staudt

Faculty Working Papers

In this symposium essay, I briefly explore the usefulness of critical scholarship generally and then point to the manner in which this type of analysis can (and does) advance Professor Zelenak's aim of devising technical solutions to difficult policy problems. I then turn to Zelenak's critique of my article, "Taxing Housework." I argue that far from undermining my proposal to tax imputed income, Zelenak's work highlights several reasons for considering the proposal as an alternative to the existing tax structure. Importantly, I do not claim that taxing women's household labor is a perfect solution to the social and economic problems …

The Theory And Practice Of Taxing Difference, Nancy Staudt

Faculty Working Papers

This is a review essay that examines Professor Edward McCaffery's important book, "Taxing Women." It argues that while McCaffery provides a detailed and nuanced analysis of the feminist and economic issues, his work is problematic in several ways. First, it is not clear that the optimal theory of taxation leads to the policy reform he proposes-it may be both underinclusive and overinclusive. Second, even if McCaffery has identified a clear economic rationale for taxing married women at a lower rate than men and single women, feminists may object to this proposed tax structure on a number of grounds. Finally, McCaffery's …

It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato

Faculty Working Papers

What we require—like the third bowl of soup in the story of the three bears—is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar. To qualify for the award, the theory must answer the following questions: