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

Law Commons

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

Articles 1 - 30 of 99

Full-Text Articles in Law

Consumerism Versus Producerism: On The Global Menace Of "Consumerism" And The Mission Of Comparative Law, James Q. Whitman Aug 2006

Consumerism Versus Producerism: On The Global Menace Of "Consumerism" And The Mission Of Comparative Law, James Q. Whitman

Faculty Scholarship Series

This paper aims to develop an analytic comparative law approach to the global spread of "consumerist" law. It expresses dismay at the failure of comparative law to offer any contribution to global debates over the sort of consumerism associated with the practices of firms like Wal-Mart, and proposes that scholars should revive the distinction between "consumerism" and "producerism" that was common in the 1930s. Focusing on questions of competition law, the law of retail and labor law, as well as on Wal-Mart's recent failure to penetrate German markets, it rejects the claim that consumerism is inevitably bound to triumph ...


The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf Aug 2006

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf

Student Scholarship Papers

This Article examines the constitutional status of suspicionless searches and seizures of groups—an exceedingly important question in an age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review. First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in the political process, and there is no reason why the Fourth Amendment should not do ...


Paying For Performance In Bankruptcy: Why Ceos Should Be Compensated With Debt , Yair J. Listokin Aug 2006

Paying For Performance In Bankruptcy: Why Ceos Should Be Compensated With Debt , Yair J. Listokin

Faculty Scholarship Series

While managerial performance always plays a critical role in determining firm performance, a manager’s importance assumes a heightened role in bankruptcy. A manager in bankruptcy both runs the firm and helps form a plan of reorganization. In light of this critical role, one would expect that bankruptcy scholarship would place considerable emphasis on the role of CEO compensation in incentivizing managerial performance in bankruptcy. The opposite is true, however. Bankruptcy scholars and practitioners tend to emphasize other levers of corporate governance, such as the role of Debtor-in-Possession financiers, rather than the importance of CEO compensation. This Article seeks to ...


Doctors, Apologies, And The Law: An Analysis And Critique Of Apology Laws, Marlynn Wei Aug 2006

Doctors, Apologies, And The Law: An Analysis And Critique Of Apology Laws, Marlynn Wei

Student Scholarship Papers

This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians’ reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients’ families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians’ disclosure of medical mistakes and demonstrates how the underlying problem may ...


Lost Opportunity: Bush V. Holmes And The Application Of State Constitutional Uniformity Clauses To School Voucher Programs, Jamie S. Dycus Aug 2006

Lost Opportunity: Bush V. Holmes And The Application Of State Constitutional Uniformity Clauses To School Voucher Programs, Jamie S. Dycus

Student Scholarship Papers

This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida's constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach.

Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions ...


The Experts Aren't Reliable Either: Why Expert Testimony On The Reliability Of Eyewitness Testimony Is Unwarranted In Alabama State Courts, Robin Preussel Aug 2006

The Experts Aren't Reliable Either: Why Expert Testimony On The Reliability Of Eyewitness Testimony Is Unwarranted In Alabama State Courts, Robin Preussel

Student Scholarship Papers

The article first summarizes the possible sources of error found in eyewitness testimony according to psychological and cognitive science research. The paper then explores the admissibility of this expert testimony under the existing rules of evidence according to both federal law and Alabama state law, as well as court commentary on its admissibility, and concludes the liberal admission of such testimony is not warranted in the case of Alabama. Taking into consideration the policies which constitute the state's provision of legal services to indigent defendants, five arguments counsel against the admission of expert testimony, including: the trial court's ...


Theories Of Asbestos Litigation Costs ­ Why Two Decades Of Procedural Reform Have Failed To Reduce Claimants’ Expenses, Jeffrey M. Davidson May 2006

Theories Of Asbestos Litigation Costs ­ Why Two Decades Of Procedural Reform Have Failed To Reduce Claimants’ Expenses, Jeffrey M. Davidson

Student Scholarship Papers

In twenty years of asbestos litigation, procedural reforms at all levels of the civil litigation system have failed to reduce plaintiffs’ attorneys’ fees. The result has been dramatic undercompensation of asbestos tort victims. This paper attempts to explain this remarkable fact using economic methodology. The paper offers three theories: First, that the continuing difficulty of assessing causation in asbestos and other mass tort cases predictably impedes the efforts of procedural reform to reduce costs; second, that changes in defendant and insurer risk attitudes have generated costly litigation; third, that collusion of plaintiffs’ attorneys to maintain prices cannot be ruled out ...


Questioning The Fundamental Right To Marry, Joseph A. Pull May 2006

Questioning The Fundamental Right To Marry, Joseph A. Pull

Student Scholarship Papers

The Supreme Court has adopted the doctrine of a constitutional “fundamental right to marry,” and has construed this doctrine to mean a fundamental right to state-recognized legal-marriage. However, the doctrine has several problems: (a) the Court never satisfactorily explains why marriage is a fundamental right; (b) the Court never defines the boundaries of marriage as a fundamental right; and (c) the Court has occasionally treated marriage as if it were not a fundamental right.

Further, the idea of a “fundamental right to marry” contains a debilitating internal contradiction: the notion of a fundamental right implies firm privileges which the state ...


“Mismatched” Objectives: Evaluating The Affirmative Action Debate, Geneva B. Mcdaniel May 2006

“Mismatched” Objectives: Evaluating The Affirmative Action Debate, Geneva B. Mcdaniel

Student Scholarship Papers

Legal evaluation of affirmative action is structured as a two part analysis of means and ends. However, both legal and empirical analyses suggest that presently the end for which certain means are employed has not been clearly articulated. The failure to identify an objective frustrates the public’s ability to evaluate, and the administrator’s ability to narrowly tailor, existing programs. When elected officials and the public are being asked to choose between color blind and race conscious programs, it is problematic that we lack the tools necessary for thorough assessment. With the DOJ and Center for Equal Opportunity’s ...


Turning Medals Into Metal: Evaluating The Court Of Arbitration For Sport As An International Tribunal, Daniel H. Yi May 2006

Turning Medals Into Metal: Evaluating The Court Of Arbitration For Sport As An International Tribunal, Daniel H. Yi

Student Scholarship Papers

The history of transnational adjudication is littered with failure and disappointment. War crimes tribunals have often become farces, the ICC has exacerbated armed conflicts, and even the venerable ICJ has endured humiliating failures. This piece makes a compelling case for why one international tribunal, the Court of Arbitration for Sport (“CAS”), has managed to flourish in the otherwise depressing landscape of transnational adjudication. Specifically, the article makes a novel argument for 1) why parties are drawn to the CAS, and 2) how the CAS’ speech acts manage to have force.


The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young May 2006

The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young

Student Scholarship Papers

In 1990, Smith changed the landscape of free exercise jurisprudence and introduced what this Article describes as the “centrality concern”: the principle that judges are in no place to determine the centrality of various activities to a particular religion. However, no legal scholar has recognized the extent to which the centrality concern has been undermined. This Article explains how Lukumi, Locke and most Circuits have undermined the centrality concern. Implications of this doctrinal anomaly will be illustrated with the example of the less often discussed religion of conservative Christianity, and the Article concludes with some brief recommendations.


Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole Mar 2006

Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole

Faculty Scholarship Series

A major cause of wrongful convictions is mistaken eyewitness identification. The leading Supreme Court case governing due process challenges to identification procedures, Manson v. Brathwaite, is almost 30 years old, and does not account for decades of social science research on eyewitness I.D. In fact, parts of the Manson test designed to ensure reliability run counter to research findings. In this piece, O'Toole and Shay describe the problems with the Manson test, and propose a new rule of decision for due process challenges to identification procedures.


Competition, Consumer Welfare, And The Social Cost Of Monopoly, Yoon-Ho Alex Lee Mar 2006

Competition, Consumer Welfare, And The Social Cost Of Monopoly, Yoon-Ho Alex Lee

Student Scholarship Papers

Conventional deadweight loss measures of the social cost of monopoly ignore, among other things, the social cost of inducing competition and thus cannot accurately capture the loss in social welfare. In this Article, we suggest an alternative method of measuring the social cost of monopoly. Using elements of general equilibrium theory, we propose a social cost metric where the benchmark is the Pareto optimal state of the economy that uses the least amount of resources, consistent with consumers’ utility levels in the monopolized state. Since the primary goal of antitrust policy is the enhancement of consumer welfare, the proper benchmark ...


“For The Murder Of His Own Female Slave, A Woman Named Mira...” : Law, Slavery And Incoherence In Antebellum North Carolina, Anthony V. Baker Mar 2006

“For The Murder Of His Own Female Slave, A Woman Named Mira...” : Law, Slavery And Incoherence In Antebellum North Carolina, Anthony V. Baker

Student Scholarship Papers

“for the murder of his own female slave, a woman named Mira...” : Law, Slavery and Incoherence in Antebellum North Carolina

__________________________________________________________

“The death of culture begins when its normative institutions fail to communicate ideals in ways that remain inwardly compelling...”

Phillip Rieff

In the spring of 1839 a ‘slave owner,’ ­ Mr. John Hoover ­ was arrested for the brutal murder of his own ‘property,’ a young woman named Mira. Convicted of the capital charge by a jury of his peers ­ 12 fellow ‘slave owners,’ as the relevant law then required ­ his appeal to the North Carolina Supreme Court was rejected in ...


Yale Law School Commencement Remarks May 22, By Professor Kahan, Dan M. Kahan Jan 2006

Yale Law School Commencement Remarks May 22, By Professor Kahan, Dan M. Kahan

Yale Law School Commencement Addresses

No abstract provided.


The States As A Laboratory: Legal Innovation And State Competition For Corporate Charters, Roberta Romano Jan 2006

The States As A Laboratory: Legal Innovation And State Competition For Corporate Charters, Roberta Romano

Faculty Scholarship Series

Corporate law is an arena in which the metaphor of the "states as a
laboratory" describes actual practice, and, for the most part, this is a
laboratory that has worked reasonably well. The goal ofthis Article is to map
out over time the diffusion ofcorporate law reforms across the states. The lawmaking pattern we observe indicates a dynamic process in which legal
innovations originate from several sources, creating a period of legal
experimentation that tends to identifY a statutory formulation that is thereafter adopted by the vast majority ofstates. Delaware and the Model Act quite often work in tandem. But ...


Book Review: Affirmative Action Around The World: An Empirical Study, Monica C. Bell Jan 2006

Book Review: Affirmative Action Around The World: An Empirical Study, Monica C. Bell

Faculty Scholarship Series

Affirmative Action Around the World. An Empirical Study. By Thomas Sowell. New Haven: Yale University Press, 2004. Pp. x, 256. Price: $17.00 (Paperback). Reviewed by Monica C. Bell.

Renowned black economist Thomas Sowell's Affirmative Action Around the World is an extensively researched, accessibly written, and refreshingly comparative addition to the conservative canon. Though readers will quickly realize that Sowell is a vehement opponent of affirmative action, the ideas presented in this book deserve rigorous engagement by scholars of ethnic conflict and proponents of race-conscious policy. The book has two distinct but interrelated purposes: First, Sowell wishes to "cut ...


Let Us Count The Ways: A Tribute To Boris Bittker, John G. Simon Jan 2006

Let Us Count The Ways: A Tribute To Boris Bittker, John G. Simon

Faculty Scholarship Series

How do we remember Boris? Let us count the ways. What is salient for some hundreds or thousands is the memory of his inspired teaching, a memory I share from his tax classes fifty-four years ago, including the humor: "I am, at heart," he said, "a ham." An even larger audience stands in awe (as I do) of the monumental written output that made Boris the First Lord of American tax scholars. Here, let us count other ways, other Bittker virtues, crudely summed up under the headings of independence and citizenship.


Supplemental Comments Of Robert A. Solomon, Robert A. Solomon Jan 2006

Supplemental Comments Of Robert A. Solomon, Robert A. Solomon

Faculty Scholarship Series

Many of the civil legal services in Connecticut are provided by
three regional agencies. When most of Connecticut's legal services
programs merged into a single program during the 1970s, creating
Connecticut Legal Services, New Haven and Hartford resisted, fearing a
loss of control and potential loss of funding. Resisting merger did in
fact benefit New Haven and Hartford, as these communities now have
more civil legal aid resources than any other city in relation to need.


Creating An American Property Law: Alienability And Its Limits In American History, Claire Priest Jan 2006

Creating An American Property Law: Alienability And Its Limits In American History, Claire Priest

Faculty Scholarship Series

This article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors. Traditional English law, protecting inheritance, shielded a debtor's land from the reach of creditors in two respects. An individual's freehold interest in land was exempted from the claims of unsecured creditors both during life and in inheritance proceedings. In addition, even when land had been explicitly pledged as collateral in mortgage agreements, chancery court procedures imposed substantial costs on creditors using legal process to seize the land. American property law, however, emerged ...


How Close Is The End Of History?, Henry Hansmann Jan 2006

How Close Is The End Of History?, Henry Hansmann

Faculty Scholarship Series

When I was invited to prepare a contribution to this conference in honor of Bob Clark, I was encouraged to offer some follow-up observations on the essay that Reinier Kraakman and I wrote on The End of History for Corporate Law. Although that essay isn't highly representative of the work that Kraakman and I, either alone or together, have done in the area of corporate law, the topic is perhaps appropriate for the setting. For, while it's a casual piece, the essay at least tries to take a broad view of the subject. And Bob Clark is a ...


Richard Wellman And The Reform Of American Probate Law, John H. Langbein Jan 2006

Richard Wellman And The Reform Of American Probate Law, John H. Langbein

Faculty Scholarship Series

Richard Wellman was a national treasure. He was our most

knowledgeable and influential authority on probate procedure, that

is, on the processes for administering decedents' estates.

By the middle decades of the twentieth century, when Wellman's

career took shape, many American probate courts were a disgrace.

Their rules, mostly embodied in state statutes, required court

supervision of the most routine steps in the work of winding up the

estate, paying the creditors, and transferring the remaining

property to the heirs or devisees. Lawyers, probate judges, and

court functionaries prospered doing makework at the expense of

widows and orphans and ...


Note, For-Profit And Nonprofit Charter Schools: An Agency Costs Approach, John D. Morley Jan 2006

Note, For-Profit And Nonprofit Charter Schools: An Agency Costs Approach, John D. Morley

Faculty Scholarship Series

This Note applies agency costs theory to explain charter schools' use of for profit and nonprofit forms, and to suggest ways to make charter school regulation more sensitive to the differences between these forms. Borrowing from Henry Hansmann's "contract failure" theory of nonprofits and recent data on the makeup of the charter school market, I argue that nonprofit forms dominate because they minimize the unusually high agency costs that characterize interactions between charter operators and the parents, regulators, and donors who influence them. For-profit schools survive only when the economies of scale they capture through superior capital-raising offset their ...


Viewing Csi And The Threshold Of Guilt: Managing Truth And Justice In Reality And In Fiction, Tom R. Tyler Jan 2006

Viewing Csi And The Threshold Of Guilt: Managing Truth And Justice In Reality And In Fiction, Tom R. Tyler

Faculty Scholarship Series

The "CSI effect" is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior. Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise their standards in real trials, in which actual evidence is typically more flawed and uncertain. As a result, these CSI-affected jurors are alleged to acquit defendants more frequently. This Review argues that, while some existing evidence on juror decisionmaking is consistent with the CSI effect, it is equally plausible that watching CSI ...


The Law Of Implicit Bias, Christine Jolls, Cass R. Sunstein Jan 2006

The Law Of Implicit Bias, Christine Jolls, Cass R. Sunstein

Faculty Scholarship Series

Considerable attention has been given to the Implicit Association Test (IA T), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of "debiasing ...


Closing Remarks – Jay Katz: From Adjunct To Core, Guido Calabresi Jan 2006

Closing Remarks – Jay Katz: From Adjunct To Core, Guido Calabresi

Faculty Scholarship Series

What is left to say after this wonderful Symposium? A lot, actually. Taking the titles of the keynote presentations and extrapolating from them reveals what I mean.

The title of Robert Burt's presentation was "The Uses of Psychoanalysis in the Law: Illuminating Biomedical Ethics." Extrapolate this to: "Illuminating Medical Ethics." Jay has done this magnificently, not only through his knowledge of psychoanalysis, but through his extraordinary life experiences, some of which—like those of being a refugee, an immigrant, and an outsider—I share in part, but many of which are unique to him. Jay has also illuminated medical ...


Credit Past Due, Richard R.W. Brooks Jan 2006

Credit Past Due, Richard R.W. Brooks

Faculty Scholarship Series

Well-intentioned critics point to the absence of banks in poor communities as the cause of the sprawl of fringe creditors. This observation may have been true at one time, but presently it is backward—it is the prevalence of fringe creditors that forecloses more traditional credit institutions from poor and working class communities. Foreclosure occurs because fringe creditors deny their customers the most basic prerequisite for access to traditional credit markets: portable evidence of creditworthiness, that is, a credit record. Credit records serve both an ex ante and an ex post function. Prior to making loans, banks use credit records ...


The Pragmatic Passion Of Stephen Breyer, Paul Gewirtz Jan 2006

The Pragmatic Passion Of Stephen Breyer, Paul Gewirtz

Faculty Scholarship Series

Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important book, Active Liberty, which crystallizes a fundamental set of beliefs about the American Constitution and his role as a Justice. Taking Active Liberty as the entry point, this piece places Breyer's book in the wider context of his judicial opinions and activities as a Justice—and, as such, seeks to provide a preliminary sketch of Breyer's distinctive place in American law today.


Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, Geoffrey C. Hazard Jr., Angelo Dondi Jan 2006

Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, Geoffrey C. Hazard Jr., Angelo Dondi

Faculty Scholarship Series

In a period in which an event as interesting and important as the formulation
of Principles and Rules of Transnational Civil Procedure by the
American Law Institute and the International Institute for the Unification
of Private Law (UNIDROIT) is sternly advancing to accommodate basic
procedural concepts for both the civil and common law systems, a central
problem faced in such conciliation seems to be that of clarifying the actual
roles and responsibilities of judges and lawyers in the conduct of a civil
dispute. To do so will essentially mean scrutinizing the value and validity
of settled conceptions of the inherent ...


Good Governance At The Supranational Scale: Globalizing Administrative Law, Daniel C. Esty Jan 2006

Good Governance At The Supranational Scale: Globalizing Administrative Law, Daniel C. Esty

Faculty Scholarship Series

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administrative law, which have been used to legitimate regulatory decisionmaking in the domestic context, should be deployed more systematically when policymaking is undertaken at the international level. While acknowledging the inevitable lack of democratic underpinnings for supranational governance, this Article highlights a series of other bases for legitimacy: expertise and the ability to promote social welfare; the order and stability provided by ...