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Articles 31 - 49 of 49

Full-Text Articles in Law

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott Jan 2004

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Recently, the privileged legal status of marriage has become the subject of political and academic controversy. Some feminist critics argue that marriage, the source of women's subordination, is outmoded as a family form and that its privileged status should be abolished. Others argue that informal cohabitation unions should be subject to the same legal treatment as marriage. Representative of this approach is a recent A.L.I. proposal that creates a domestic partnership status for cohabiting couples. On the other side of the debate, most defenders of marriage tend to be religious and social conservatives who favor traditional marriage ...


Corporate Governance, Executive Compensation And Securities Litigation, Eric L. Talley, Gudrun Johnsen Jan 2004

Corporate Governance, Executive Compensation And Securities Litigation, Eric L. Talley, Gudrun Johnsen

Faculty Scholarship

It is generally accepted that good corporate governance, executive compensation and the threat of litigation are all important mechanisms for incentivizing managers of public corporations. While there are significant and robust literatures analyzing each of these policy instruments in isolation, their mutual relationship and interaction has received somewhat less attention. Such neglect is mildly surprising in light of a strong intuition that the three devices are structurally related to one another (either as complements or substitutes). In this paper, we construct an agency cost model of the firm in which corporate governance protections, executive compensation levels, and litigation incentives are ...


The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke Jan 2004

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that allows gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke ...


On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt Jan 2004

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt

Faculty Scholarship

Say the words "gun registration" to many pro-gun Americans and you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the Holocaust. One of the more curious twists in the historical debate, though, is that the most vocal opponent of this argument is also pro-gun. It is the National Alliance, a white supremacist organization. According to them, "German Firearms legislation under Hitler, far ...


Contextual Analysis Of Tax Ownership, Alex Raskolnikov Jan 2004

Contextual Analysis Of Tax Ownership, Alex Raskolnikov

Faculty Scholarship

Ownership is one of the most fundamental concepts in tax law, yet it is remarkably confused. The uncertainty inhibits tax planning, leads to inconsistent responses from the government, and produces unexpected outcomes in the courts. There has been no shortage of scholarly attention to the issue, but most of the commentary has been either exceedingly narrow or focused on far-reaching reforms. As a result, the law of tax ownership lacks conceptual foundation. This Article attempts to remedy the deficiency. It proposes a comprehensive approach to tax ownership and demonstrates that the doctrine may (and should) be significantly clarified without a ...


Scrubbing The Wash Sale Rules, David M. Schizer Jan 2004

Scrubbing The Wash Sale Rules, David M. Schizer

Faculty Scholarship

Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the timing option inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value).

The wash sale regime of Section 1091 is one of our system's most important brakes on the timing option. Yet it is only a slight exaggeration to say that compliance with the regime is voluntary for very wealthy taxpayers – or, at ...


Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann Jan 2004

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

Faculty Scholarship

The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards here and elsewhere contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Because increasing financial distress imposes substantial externalities on the economies in which it occurs, the global rise ...


Sexual Tensions Of Post-Empire, Katherine M. Franke Jan 2004

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has ...


Making Sense Of Payments Policy In The Information Age, Ronald J. Mann Jan 2004

Making Sense Of Payments Policy In The Information Age, Ronald J. Mann

Faculty Scholarship

This is a substantially revised and focused version of Payments Policy in the Information Age. This essay in its new form explores how we should design a coherent payments policy, focusing on the incoherence of existing policy related to credit and debit cards. The central point of the essay is that previous analysis has failed to recognize the importance of the underlying transactions in which payments are made to issues ordinarily treated in the legal rules that regulate payment systems. Generally, I argue that issues of payments policy need to be separated into two categories: those for which determination of ...


Contracts With Consent: A Contextual Critique Of The No-Retraction Liability Regime, Ronald J. Mann Jan 2004

Contracts With Consent: A Contextual Critique Of The No-Retraction Liability Regime, Ronald J. Mann

Faculty Scholarship

This is a reply to Omri Ben-Shahar's Contracts with Consent, forthcoming in the Pennsylvania Law Review, and will be published along with his essay in that journal. The reply makes two main points. First, it argues that Omri's no-retraction liability regime will impose substantial costs, largely because of the frequency with which parties will have non-opportunistic reasons for retracting contract proposals that their negotiating partners have not yet accepted. Second, it argues that these costs will be substantial even though Ben-Shahar presents his proposal as a default rule. First, his rule vitiates the information-forcing benefits of the current ...


Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan Jan 2004

Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan

Faculty Scholarship

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual contracting provide some evidence that coercive sanctions may crowd out self enforcement, implying that too great a propensity by external actors to intervene in the contractual relationship may produce welfare losses. We explore the possibility that too much coercive third-party enforcement similarly can reduce the value of international agreements.

We argue ...


The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz Jan 2004

The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz

Faculty Scholarship

The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part ...


Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz Jan 2004

Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The standard contract that governs friendly mergers contains a material adverse change clause (a "MAC") and a material adverse effect clause (a "MAE"); these clauses permit a buyer costlessly to cancel the deal if such a change or effect occurs. In recent years, the application of the traditional standard-like MAC and MAE term has been restricted by a detailed set of exceptions that curtails the buyer's ability to exit. The term today engenders substantial litigation and occupies center stage in the negotiation of merger agreements. This paper asks what functions the MAC and MAE term serve, what function the ...


The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg Jan 2004

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included the right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever one's conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a personality right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of ...


Choice As Regulatory Reform: The Case Of Japanese Corporate Governance, Ronald J. Gilson, Curtis J. Milhaupt Jan 2004

Choice As Regulatory Reform: The Case Of Japanese Corporate Governance, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The fact of a small number of hostile takeover bids in Japan the recent past, together with technical amendments of the Civil Code that would allow a poison pill-like security, raises the question of how a poison pill would operate in Japan should it be widely deployed. This paper reviews the U.S. experience with the pill to the end of identifying what institutions operated to prevent the poison pill from fully enabling the target board to block a hostile takeover. It then considers whether similar ameliorating institutions are available in Japan, and concludes that with the exception of the ...


Editorial: The European Union As A Constitutional Experiment, George Bermann Jan 2004

Editorial: The European Union As A Constitutional Experiment, George Bermann

Faculty Scholarship

In the constellation of international governance regimes, the European Union occupies a singular place, and not merely because it has recently engaged in the process of drafting a document whose title includes the words A Constitution for Europe'. Even if that particular document, or any such document, were never to see the light of day as a fully adopted and ratified instrument (an eventuality I consider to be unlikely), the EU will already have been constitutionalised, albeit in a fashion unfamiliar to those who, like most of us, are accustomed to the constitutions of Nation States. To claim that the ...


Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz Jan 2004

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for a separate, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions, and to the ways in which identifying a defendant's true crime promotes prosecutorial accountability and deterrence. This essay explores the credibility problems created by prosecutorial strategies of the sort used to get Al Capone, and offers some theories about why these strategies have become so characteristic of federal, and not local ...


The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffrey Fagan, Valerie West Jan 2004

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffrey Fagan, Valerie West

Faculty Scholarship

In 2003, the Missouri Supreme Court set aside the death sentence of Christopher Simmons, who was 17 when he was arrested for the murder of Shirley Crook. The Simmons court held that the "evolving standards of decency" embodied in the Eighth Amendment's prohibition of cruel and unusual punishments barred execution of persons who committed capital crimes before their 18th birthday. This decision was based in part on the emerging legislative consensus in the states opposing execution of juvenile offenders and the infrequency with which the death penalty is imposed on juvenile offenders. The State sought a writ of certiorari ...


Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon Jan 2004

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the ...