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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 ...


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 ...


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.


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 ...


Edwin S. Cohen, Michael J. Graetz Jan 2006

Edwin S. Cohen, Michael J. Graetz

Faculty Scholarship Series

This is not the first time I have spoken to honor Edwin S. Cohen. I spoke at two of his retirements—at least—and in the Rotunda at both his 75th and 90th birthday celebrations. Each time, and on many other occasions over the years when I have spoken about tax law or policy in his presence, I would always steal a glance at Eddie, looking for that twinkle in his eyes, hoping to bring a smile to his face, or even an outright giggle. Today, I know I will still look, as I will for years to come, though ...


Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr. Jan 2006

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship Series

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of ...


Boris I. Bittker, Michael J. Graetz Jan 2006

Boris I. Bittker, Michael J. Graetz

Faculty Scholarship Series

I first met Boris Bittker on January 21, 1977, in Miami. There are only a handful of people whom you remember first meeting. For me, Boris was one. For the past twenty or so years, I have been lucky enough to count him as a friend. He was always Boris to me, never Borie. I was a new friend—too much his junior to be so informal. Our phone would ring. "Mike, it's Borie," he would say. "Hello Boris!" I would respond.

The conference where Boris and I met was a gathering of about thirty tax law professors and ...


No Frills Textualism, William N. Eskridge Jr. Jan 2006

No Frills Textualism, William N. Eskridge Jr.

Faculty Scholarship Series

The purpose of this Review is to situate Professor Vermeule's "no frills" textualism historically and to evaluate its cogency. Part I identifies previous statutory theorists who have anticipated the institutionalist methodology and the central argument in Judging Under Uncertainty - that agencies and not judges should enjoy primacy in statutory interpretation. Professor Vermeule is much more dismissive of judicial capabilities and more enthusiastic about agency lawmaking than earlier theorists, however. Rejecting the relevance of constitutional norms and traditional practice, he argues that the country will save money and enjoy better policy decisions if federal judges ratify agency rules unless they ...


Taxes That Work: A Simple American Plan, Michael J. Graetz Jan 2006

Taxes That Work: A Simple American Plan, Michael J. Graetz

Faculty Scholarship Series

In November 2005, the President's Advisory Panel on Tax Reform, appointed by President Bush to suggest options for reforming and simplifying the federal tax code, unanimously recommended two alternative plans: a "simplified income tax" (SIT) and a "growth and investment tax" (GIT). The two plans shared much in common. For example, both would: (1) Reduce the top marginal tax rate—to 33% under the SIT plan and 30% under GIT plan; (2) eliminate the alternative minimum tax (AMT); (3) replace the earned income tax credit (EITC) and refundable child credits with a "work credit"; (4) replace personal exemptions, the ...


Introduction: Property And Language, Or, The Ghost Of The Fifth Panel, Carol M. Rose Jan 2006

Introduction: Property And Language, Or, The Ghost Of The Fifth Panel, Carol M. Rose

Faculty Scholarship Series

It is gratifying, hugely flattering, and at the same time somewhat embarrassing to have to open a conference and then a symposium issue on one's own academic work. No doubt understanding this embarrassment, my colleague and good friend Ian Ayres suggested a way out: since the conference was named "The Properties of Carol Rose," I should take the occasion to talk about the various residences I have owned. A great idea, and I did indeed think about it, because as Ian knows, I have had good luck in that dimension, with more than my share of weird and interesting ...


Kim Barry’S Fruitful Provocation, Peter H. Schuck Jan 2006

Kim Barry’S Fruitful Provocation, Peter H. Schuck

Faculty Scholarship Series

If the raison d'etre of the scholar is to provoke thought and contribute to the growth and refinement of our understanding of important phenomena, Kim Barry has succeeded. It is the fate of those who die young to be forever bathed in, but also obscured by, the luster of their promise. Our loving hopes for them often overshadow what they wanted for themselves and would have done with their talents. In Barry's case, however, this possible confusion is dispelled by the fact, fully revealed by this Symposium, that her ambition to be a notable legal scholar has already ...


How Children Are Heard In Child Protective Proceedings, In The United States And Around The World In 2005: Survey Findings, Initial Observations, And Areas For Further Study, Jean Koh Peters Jan 2006

How Children Are Heard In Child Protective Proceedings, In The United States And Around The World In 2005: Survey Findings, Initial Observations, And Areas For Further Study, Jean Koh Peters

Faculty Scholarship Series

When the state seeks to intervene into a family on behalf of a child who may have been abused or neglected, how can a child's views be made known to the important decision makers in the child's case? This question is at once logistically complex and desperately important to the child. The logistical complications stem from many sources: the child's inability to rely on her most natural representative, her parent; the probability that the child at critical moments in the case is traumatized or under great emotional stress; the problems of a child's encountering an adult ...


Principles, Practices, And Social Movements, Reva B. Siegel, Jack M. Balkin Jan 2006

Principles, Practices, And Social Movements, Reva B. Siegel, Jack M. Balkin

Faculty Scholarship Series

Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice-a practice ...


Questioning Justice: Law And Politics In Judicial Confirmation Hearings, Reva B. Siegel Jan 2006

Questioning Justice: Law And Politics In Judicial Confirmation Hearings, Reva B. Siegel

Faculty Scholarship Series

Senate confirmation hearings for Supreme Court nominees have in recent years grown increasingly contentious. Nominees have refused to answer questions about their constitutional views on the ground that any such interrogation would compromise the constitutional independence of the judiciary. This Article offers a structural framework for analyzing the prerogative of senators to question nominees. The Constitution balances competing commitments to self-government and to the rule of law in its design for appointing tenured Article III judges. Senators may accordingly ask questions to obtain information necessary to discharge their democratic responsibilities in confirming nominees, but not in ways that undermine the ...


The Politicization Of American Corporate Governance, Jonathan R. Macey Jan 2006

The Politicization Of American Corporate Governance, Jonathan R. Macey

Faculty Scholarship Series

The governance of publicly-held corporations is effectuated by a number of public and private institutions ranging from the Securities and Exchange Commission (SEC) to the market for corporate control. These institutions vary enormously in terms of their organizational forms and existential motivations, but they share the common characteristic of contributing to the control of agency costs faced by investors in public companies.


A Dialogue, Akhil Reed Amar Jan 2006

A Dialogue, Akhil Reed Amar

Faculty Scholarship Series

Jed Rubenfeld: Akhil, you and I have a great deal in common, but also some fundamental differences, at least in principle. Equal protection doctrine might provide a good backdrop to make these differences clear. When it comes to Brown v. Board of Education, our disagreements are not of a fundamental nature. You're inclined to be much more accepting than I of the claim that the Fourteenth Amendment was originally understood to bar racial segregation (at least of some kinds), so you don't see Brown as the revolutionary case that many of us do. I take Brown to be ...