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

Law Commons

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

Articles 1 - 30 of 64

Full-Text Articles in Law

The Rose Theorem?, Michael Heller Jan 2006

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem - and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent ...


Credit Cards, Consumer Credit, And Bankruptcy, Ronald J. Mann Jan 2006

Credit Cards, Consumer Credit, And Bankruptcy, Ronald J. Mann

Faculty Scholarship

This paper analyzes the effects of credit card use on broader economic indicators, specifically consumer credit, and consumer bankruptcy filings. Using aggregate nation-level data from Australia, Canada, Japan, the United Kingdom, and the United States, I find that credit card spending, lagged by 1-2 years, has a strong positive effect on consumer credit. Finally, I find a strong relation between credit card debt, lagged by 1-2 years, and bankruptcy, and a weaker relation between consumer credit, lagged by 1-2 years, and bankruptcy. The relations are robust across a variety of different lags and models that account for problems of multicollinearity ...


Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen Jan 2006

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment ...


Assessing The Ssrn-Based Law School Rankings, Theodore Eisenberg Jan 2006

Assessing The Ssrn-Based Law School Rankings, Theodore Eisenberg

Cornell Law Faculty Publications

One noteworthy feature of the SSRN-based rankings is the high correlation between them and other rankings. Black and Caron report correlation coefficients between their two Social Science Research Network (SSRN) school rankings (one based on downloads from SSRN and one based on the number of papers posted on SSRN) and six other published rankings. The correlations provide a useful and creative measure of consistency across studies. If ranking studies are highly correlated, then the least expensive and most efficient study to conduct can be used without incurring the expense and delay of the more labor-intensive ranking methods. SSRN has a ...


The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens Jan 2006

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Discrimination against people with mental illness occurs in part because of how those with mental illness can make other people feel. A psychotic person may make others feel agitated or afraid, for example, or a depressed person may make others feel sad or frustrated. Thus, a central basis for discrimination in this context is what I call hedonic costs. Hedonic costs are affective or emotional costs: an influx of negative emotion or loss of positive emotion. In addition, the phenomenon of emotional contagion, which is one source of hedonic costs, makes discrimination against people with mental illness peculiarly intractable. Emotional ...


Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann Jan 2006

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the ...


Transsystemia - Are We Approaching A New Langdellian Moment? Is Mcgill Leading The Way?, Peter L. Strauss Jan 2006

Transsystemia - Are We Approaching A New Langdellian Moment? Is Mcgill Leading The Way?, Peter L. Strauss

Faculty Scholarship

Late in the 19th century, as our economy was transformed into a truly national one, legal education was transformed by the adoption of a teaching technique - Langdell's Socratic Method - that succeeded in creating law graduates confident of their capacity to be professionals in ANY American common law jurisdiction - national lawyers even in the absence of a national common law. Today, as the economy is once again transforming, now internationally, lawyers have an equivalent need to be confident of their capacity to perform across national boundaries. The paper briefly describes the way in which McGill University's Faculty of Law ...


Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss Jan 2006

Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss

Faculty Scholarship

This paper stems from a project on European Union Administrative Law undertaken by the American Bar Association's Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered. In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem ...


From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt Jan 2006

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard E. Harcourt

Faculty Scholarship

The incarceration explosion of the late twentieth century set off a storm of longitudinal research on the relationship between rates of imprisonment and crime, unemployment, education, and other social indicators. Those studies, however, are fundamentally flawed because they fail to measure confinement properly. They rely on imprisonment data only, and ignore historical rates of mental hospitalization. With the exception of a discrete literature on the interdependence of the mental hospital and prison populations and some studies on the explanations for the prison expansion, none of the empirical work related to the incarceration explosion – or for that matter, older research on ...


The World Trade Law Of Internet Filtering, Tim Wu Jan 2006

The World Trade Law Of Internet Filtering, Tim Wu

Faculty Scholarship

In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet ...


Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman Jan 2006

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

This article examines 223 recent defamation cases in China. Empirical analysis of claims and outcomes reveals that defamation litigation is developing on two tracks. Track-one cases are brought by public officials, government and Communist Party entities, and corporations to restrict and silence the increasingly autonomous Chinese media. Track-two cases are brought by ordinary persons against the media – which remain an arm of the Party-state.

Conventional wisdom takes track-one suits as the paradigm and perceives defamation litigation in Chinese courts as yet another lever of state control over the media. Such developments correspond to the use of defamation law in other ...


Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson Jan 2006

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks. In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular ...


Institutional Coordination And Sentencing Reform, Daniel C. Richman Jan 2006

Institutional Coordination And Sentencing Reform, Daniel C. Richman

Faculty Scholarship

Generally, treatments of prosecutorial discretion in the sentencing context tend to focus on its challenge to horizontal equity and judicial discretion within sentencing regimes. The goal in this symposium piece is to reverse the arrow, and, using an internal executive perspective, start looking at how sentencing regimes and judicial enforcement of those regimes can be used as tools for the hierarchical control of line prosecutors. It first considers a problem arising out of ostensibly successful regulation within a prosecutor's offices - in this case, an effort to control plea bargaining in New Orleans. It then considers issues relating to regulation ...


Remapping The Charitable Deduction, David Pozen Jan 2006

Remapping The Charitable Deduction, David Pozen

Faculty Scholarship

If charity begins at home, scholarship on the charitable deduction has stayed at home. In the vast legal literature, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector grow increasingly international, the distinction will only become more salient.

This Article offers the first exploration of how theories of the charitable deduction ...


Going-Private Decisions And The Sarbanes-Oxley Act Of 2002: A Cross-Country Analysis, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley Jan 2006

Going-Private Decisions And The Sarbanes-Oxley Act Of 2002: A Cross-Country Analysis, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley

Faculty Scholarship

This article investigates whether the passage and the implementation of the Sarbanes-Oxley Act of 2002 (SOX) drove firms out of the public capital market. To control for other factors affecting exit decisions, we examine the post-SOX change in the propensity of public American targets to be bought by private acquirers rather than public ones with the corresponding change for foreign targets, which were outside the purview of SOX. Our findings are consistent with the hypothesis that SOX induced small firms to exit the public capital market during the year following its enactment. In contrast, SOX appears to have had little ...


Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger Jan 2006

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use ...


Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault Jan 2006

Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault

Faculty Scholarship

The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.

The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a matter of ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Jan 2006

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the "facts" about a social group, an approach that she terms "fact-based adjudication." Professor Goldberg critiques ...


A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg Jan 2006

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

This article critically analyzes the evolving history of marriage, prompted by the marriage equality claims brought by same-sex couples. The article includes a copy of an amicus brief submitted on behalf of historians to a New Jersey appellate court in Lewis v. Harris, an ultimately successful challenge to the denial of relationship recognition rights for same-sex couples.


Just Until Payday, Ronald J. Mann, Jim Hawkins Jan 2006

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last 15 years, both in the United States and abroad, has been the focus of substantial regulatory attention, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have conflicting purposes – some seek to remove barriers to entry and others seek to impose limits on the business model and those who participate in it. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of ...


Abortion, Equality, And Administrative Regulation, Gillian E. Metzger Jan 2006

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

This symposium essay argues that administrative regulation of abortion and reproductive rights deserve closer study. Administrative regulation of abortion is overwhelmingly health regulation; the focus is on abortion as a medical procedure, and the government's only stated interest is protecting the health of women obtaining abortions. Such regulation is becoming increasingly common, and is worthy of greater attention on that ground alone. But in addition, and of particular relevance to this symposium on reproductive rights and equality, administrative abortion regulation demonstrates the difficulty in successfully challenging abortion restrictions as unconstitutional gender discrimination. Given general medical agreement that early abortions ...


After Confidentiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon Jan 2006

After Confidentiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

The legal profession has yet to deal with important challenges to the traditional image and practice of business lawyering raised by recent financial reporting and tax shelter scandals. Two issues are particularly important. The first is formalism - the doctrine that only the literal terms and not the underlying purpose of the law are binding. The second is managerialism - the doctrine that conflates the interests of the corporation with those of its managers. This essay argues that a plausible ethic of business lawyering requires a more thoroughgoing rejection of these doctrines than the bar has yet considered. It also suggests that ...


Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott Jan 2006

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

Hoffman v. Red Owl Stores is one of the storied cases in modern contract law. The conventional wisdom is that Hoffman represents the emergence of a new legal rule imposing promissory estoppel liability for representations made during preliminary negotiations. Yet a review of contemporary case law shows that, in fact, courts require some form of agreement before they will grant recovery for early reliance. Hoffman's main legacy, therefore, has been as a trap for the unwary lawyer (and unhappy client) who unsuccessfully seek recovery for reliance on preliminary negotiations. This article asks how the court in Hoffman was able ...


'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg Jan 2006

'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today ...


Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan Jan 2006

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

A recent cohort of studies report deterrent effects of capital punishment that substantially exceed almost all previous estimates of lives saved by execution. Some of the new studies go further to claim that pardons, commutations, and exonerations cause murders to increase, as does trial delay. This putative life-life tradeoff is the basis for claims by legal academics and advocates of a moral imperative to aggressively prosecute capital crimes, brushing off evidentiary doubts as unreasonable cautions that place potential beneficiaries at risk of severe harm. Challenges to this "new deterrence" literature find that the evidence is too unstable and unreliable to ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2006

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov Jan 2006

The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov

Faculty Scholarship

Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare-enhancing. This Article looks at the less-appreciated darker side of social norms. It combines the analysis of the modern sophisticated tax planning techniques with the existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to ...


Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault Jan 2006

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

In Vieth v. Jubelirer, a narrow majority of the Supreme Court determined that, at least for the moment, partisan gerrymandering is nonjusticiable. Yet, strikingly, all nine members of the Court also agreed that, justiciable or not, partisan gerrymanders raise a constitutional question, and some gerrymanders are unconstitutional. However, the Court gave little attention to just why gerrymandering might be unconstitutional. The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses. This Article considers the question of why partisan gerrymandering might be unconstitutional. It finds four constitutional arguments against gerrymandering ...


Learning To Learn: Undoing The Gordian Knot Of Development Today, Charles F. Sabel, Sanjay G. Reddy Jan 2006

Learning To Learn: Undoing The Gordian Knot Of Development Today, Charles F. Sabel, Sanjay G. Reddy

Faculty Scholarship

The deep flaw of existing approaches to development is their dirigisme: the assumption, common to nearly all development theory, that there is an expert agent that already sees the future. A common thread connects the emergent alternatives to development orthodoxy: the enhancement of the conditions of individual and collective learning. This approach to development highlights the existence of unresolved problems and the necessity of problem solving in every sphere. The enhancement of the conditions of learning can be the key to improving performance, resolving deadlocks, and overcoming blockages, at every level at which common dilemmas and collective problem solving occur ...


Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig Jan 2006

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of "broken windows" policing in 1994 is remarkable. By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached 51,267 for the city, up 2,670 percent from 1,851 arrests in 1994. In 2000, misdemeanor MPV arrests accounted for 15 percent of all felony and misdemeanor arrests in New York City and 92 percent of total marijuana-related arrests in the State of New York. In addition, the pattern of arrests disproportionately targeted African-Americans and Hispanics. In this paper, we ...