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Full-Text Articles in Law

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 ...


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.


Bankruptcy Decisionmaking: An Empirical Study Of Continuation Bias In Small-Business Bankruptcies, Edward R. Morrison Jan 2006

Bankruptcy Decisionmaking: An Empirical Study Of Continuation Bias In Small-Business Bankruptcies, Edward R. Morrison

Faculty Scholarship

Over half of all small businesses reorganizing under Chapter 11 of the U.S. Bankruptcy Code are ultimately liquidated. Little is known about this shutdown decision and about the factors that increase or reduce the amount of time a firm spends in bankruptcy. It is widely suspected, however, that the Chapter 11 process exhibits a "continuation bias," allowing non-viable firms to linger under the protection of the court. This paper tests for the presence of continuation bias in the docket of a typical bankruptcy court over the course of a calendar year. A variety of tests are employed, including the ...


Enlisting The Tax Bar, David M. Schizer Jan 2006

Enlisting The Tax Bar, David M. Schizer

Faculty Scholarship

Tax shelters and aggressive planning derive in part from a structural imbalance in our tax system that has not been adequately explored: In important respects, the private tax bar outmatches their counterparts in government. Although a strong policy case can be made for remedying this mismatch, this Article emphasizes two institutional barriers that complicate any solution, rooted in the political economy of taxation and the economics and professional norms of the legal profession. First, although it would be enormously helpful to dramatically increase the staffing levels and pay of government tax administrators, this is a politically daunting task. Second, a ...


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 ...


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

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

Faculty Scholarship

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


Why Have A Telecommunications Law? Anti-Discrimination Norms In Communications, Tim Wu Jan 2006

Why Have A Telecommunications Law? Anti-Discrimination Norms In Communications, Tim Wu

Faculty Scholarship

This paper presents telecommunications law with a challenge: how much of the present Telecommunication's Acts objectives might be accomplished with a focus on a central anti-discrimination rule? The one-rule model provides one answer. This rule should be (1) a general norm that is technologically neutral, (2) in the form of an ex ante rule with ex poste remedies, and (3) anchored on a model of consumers' rights. The form of the rule recommended here is hardly radical. It is, rather, something of a restatement of the best of telecommunications practice based on decades of telecommunications experience. It borrows from ...


The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell Jan 2006

The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell

Faculty Scholarship

This paper, which will appear as a chapter in the forthcoming Handbook of Law and Economics (A.M. Polinsky & S. Shavell, eds.), surveys major issues arising in the economic analysis of contract law. It begins with an introductory discussion of scope and methodology, and then addresses four topic areas that correspond to the major doctrinal divisions of the law of contracts. These areas include freedom of contract (i.e., the scope of private power to create binding obligations), formation of contracts (both the procedural mechanics of exchange, and rules that govern pre-contractual behavior), contract interpretation (what consequences follow when agreements ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


Reforming The Securities Class Action: An Essay On Deterrence And Its Implementation, John C. Coffee Jr. Jan 2006

Reforming The Securities Class Action: An Essay On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

The securities class action cannot be justified in terms of compensation, but only in terms of deterrence. Currently, the damages recovered through private enforcement dwarf the financial penalties levied by public enforcement. Yet, the evidence is clear that corporate officers and insiders rarely contribute to securities class action settlements, with the settlement funds coming instead from the corporation and its insurers. As a result, the cost of such actions in the aggregate falls on largely diversified shareholders. Such a system is akin to punishing the victims of burglary for their negligence in suffering a burglary and does little to deter ...


Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt Jan 2006

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist ...


Home Rule And Local Political Innovation, Richard Briffault Jan 2006

Home Rule And Local Political Innovation, Richard Briffault

Faculty Scholarship

As demonstrated by San Francisco's recent adoption of instant runoff voting and New York City's recent expansion of its program for funding candidates for municipal office, local governments around the country have been actively engaged in examining and revising electoral and governmental processes. These local initiatives include alternative voting systems, campaign finance reforms, conflicts of interest codes, term limits, and revisions to tax, budget and legislative procedures. These local innovations illustrate both the capacity of local governments to restructure basic features of their political organization and their interest in doing so. Local political innovations also test the scope ...


Patents And Business Models For Software Firms, John R. Allison, Abe Dunn, Ronald J. Mann Jan 2006

Patents And Business Models For Software Firms, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

We analyze the relation between patents and the different business models available to firms in the software industry. The paper builds on Cusumano's work defining the differences among firms that sell products, those that provide services, and the hybrid firms that fall between those polar categories. Combining data from five years of Software Magazine's Software 500 with data about the patenting practices of those software firms, we analyze the relation between the share of revenues derived from product sales and the firm's patenting practices. Accounting for size, R&D intensity, and sector-specific effects, the paper finds a ...


Bankruptcy Reform And The "Sweat Box" Of Credit Card Debt, Ronald J. Mann Jan 2006

Bankruptcy Reform And The "Sweat Box" Of Credit Card Debt, Ronald J. Mann

Faculty Scholarship

Those that backed the 2005 bankruptcy reform law argued that it would protect creditors from consumer abuse and lack of financial responsibility. The substantial increase in the number of bankruptcies over the last decade combined with the perception of system-wide abuse apparently convinced legislators from both political parties that the backers had a point. Thus, Congress enacted amendments to the Bankruptcy Code that – if effective – would fundamentally change the core policies underlying the consumer bankruptcy system in this country. The rhetoric surrounding the reform debates pressed the idea that if borrowers had to repay more of their debts, creditors would ...


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 ...


The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm Jan 2006

The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm

Faculty Scholarship

This Article develops a paradigm for advancing workplace equality when the problems causing racial and gender under-participation are structural, and the legal environment surrounding diversity initiatives is uncertain. It first analyzes three key dilemmas that have limited the efficacy of prior diversity initiatives: limited capacity to institutionalize change, a legal minefield, and ineffective public accountability. It then offers three related ideas in service of advancing workplace equity through institutional transformation. Although its focus is on higher education, the Article develops an approach with more general applicability. First, it develops the norm of institutional citizenship as a justification and goal for ...


Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu Jan 2006

Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu

Faculty Scholarship

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But ...


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 ...


Rational Choice And Developmental Influences On Recidivism Among Adolescent Felony Offenders, Jeffrey Fagan, Alex R. Piquero Jan 2006

Rational Choice And Developmental Influences On Recidivism Among Adolescent Felony Offenders, Jeffrey Fagan, Alex R. Piquero

Faculty Scholarship

Recent law and scholarship has claimed that the developmental limitations of adolescents affect their capacity for control and decision making with respect to crime, diminishing their culpability and reducing their exposure to punishment. Social science has focused on two concurrent adolescent developmental influence: the internalization of legal rules and norms that regulate social and antisocial behaviors, and the development of rational thought to frame behavioral choices and decisions. The interaction of these two developmental processes, and the identification of one domain of socialization and development as the primary source of motivation or restraint in adolescence, is the focus of this ...