Law Commons^™

Debt, Bankruptcy, And The Life Course, Allison Mann, Ronald J. Mann, Sophie Staples

Faculty Scholarship

This Essay considers the significance of credit markets and bankruptcy for life course mobility. Comparing parallel data from the 2007 Survey of Consumer Finances (SCF) and the 2007 Consumer Bankruptcy Project (CBP), it analyzes use of the bankruptcy process as a function of the distribution of unplanned events, the ability of households to use credit markets to limit the adverse effects of such events, and barriers in access to the bankruptcy system. Our findings suggest two things. One, although the financial characteristics of filers vary markedly by age and race, bankrupt households generally come from the bottom quartiles of the …

Chrysler, Gm And The Future Of Chapter 11, Edward R. Morrison

Faculty Scholarship

Although they caused great controversy, the Chrysler and GM bankruptcies broke no new ground. They invoked procedures that are commonly observed in modern Chapter 11 reorganization cases. Government involvement did not distort the bankruptcy process; it instead exposed the reality that Chapter 11 offers secured creditors – especially those that supply financing during the bankruptcy case – control over the fate of distressed firms. Because the federal government supplied financing in the Chrysler and GM cases, it possessed the creditor control normally exercised by private lenders. The Treasury Department found itself with virtually the same, unchecked power that the FDIC …

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from overweening …

Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt

Faculty Scholarship

What work do the categories “the free market” and “regulation” do for us? Why do we incarcerate one out of every one hundred adults? These seemingly unrelated questions, it turns out, are deeply interconnected. The categories of free and regulated markets emerged as an effort to make sense of irreducibly individual phenomena – unique forms of market organization. In the process, these categories helped shape our belief that the economic realm is characterized by natural order and equilibrium, and that the only legitimate sphere of government intervention is policing and punishment. The consequences have been devastating: first, in distorting and …

Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir

Faculty Scholarship

It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 'WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside …

Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding …

Who Needs Bankruptcy Law?, Edward R. Morrison

Faculty Scholarship

This essay summarizes four papers: “Bargaining Around Bankruptcy: Small Business Distress and State Law,” 38 Journal of Legal Studies 255 (2009); “Bankruptcy’s Rarity: An Essay on Small Business Bankruptcy in the United States,” 5 European Company & Financial Law Review 172 (2008); “Small Business Bankruptcy and the Bankruptcy Abuse and Consumer Protection Act of 2005,” A Report to the United States Small Business Administration (2007); and Douglas G. Baird & Edward R. Morrison, “Serial Entrepreneurs and Small Business Bankruptcies,” 105 Columbia Law Review 2310 (2005).

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense …

Symposium On Pursuing Racial Fairness In Criminal Justice: Twenty Years After Mccleskey V. Kemp, Jeffrey Fagan, Mukul A. Bakhshi

Faculty Scholarship

Last year marked the twentieth anniversary of the U.S. Supreme Court's decision in McCleskey v. Kemp, a case whose ramifications for the pursuit of racial equality within criminal justice are still felt today. McCleskey set an impossibly high bar for constitutionally-based challenges seeking fundamental racial fairness in capital punishment. The McCleskey decision strengthened a jurisprudential climate that shifted and increased the burden onto defendants seeking constitutional relief from discriminatory and biased decisions at every step of the criminal justice process, from arrest to conviction and punishment. The McCleskey court articulated a crime-control rationale for tolerance of error and refused to …

Global Network Finance: Organizational Hedging In Times Of Uncertainty, Katharina Pistor

Faculty Scholarship

The global financial crisis that began in 2007 revealed a fundamental weakness in the global financial system: Extensive financial interdependence of financial relations unmatched by a governance regime of similar reach. As multinational banks sought to fortify their capital base in the wake of the unfolding crisis, Sovereign wealth Funds (SWFs) and the banks’ home governments have become mutual stakeholders in some of the largest financial intermediaries with global reach. From the multitude of individual transactions has emerged a network of equity ties that spans the globe. These ties bridge institutional practices and governance regimes that previously operated largely independently …

Experimental Law And Economics, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

This chapter provides a framework for assessing the contributions of experiments in Law and Economics. We identify criteria for determining the validity of an experiment and find that these criteria depend upon both the purpose of the experiment and the theory of behavior implicated by the experiment. While all experiments must satisfy the standard experimental desiderata of control, falsifiability of theory, internal consistency, external consistency and replicability, the question of whether an experiment also must be contextually attentive - in the sense of matching the real world choice being studied - depends on the underlying theory of decision-making being tested …

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

I will provisionally take the Guise of the Good thesis to consist of three propositions: (1) Intentional actions are actions performed for reasons, as those are seen by the agents. (2) Specifying the intention which makes an action intentional identifies central features of the reason(s) for which the action is performed. (3) Reasons for action are such reasons by being facts which establish that the action has some value. From these it is said to follow that (4) Intentional actions are actions taken in, and because of, a belief that there is some good in them. I will examine reasons …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Patterns Of Credit Card Use Among Low And Moderate Income Households, Ronald J. Mann

Faculty Scholarship

This chapter uses data from the Federal Reserve Board's Survey of Consumer Finances for 2004 (the "SCF") to examine the penetration of credit cards into LMI markets. The chapter has two purposes. First, I discuss the rise of the modern credit market, emphasizing the segmentation of product lines based on behavioral and financial characteristics of customer groups. Among other things, that trend involves the use of products aimed at LMI households that differ significantly from those aimed at middle-class households. Second, I describe the extent to which LMI households borrow on credit cards, the types of LMI households that borrow, …

Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater

Faculty Scholarship

America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and …

The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and …

Reason, Reasons And Normativity, Joseph Raz

Faculty Scholarship

All normative phenomena are normative in as much as, and because, they provide reasons or are partly constituted by reasons. This makes the concept of a reason key to an understanding of normativity. Believing that, I will here present some thoughts about the connection between reasons and Reason and between Reason and normativity.

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Supposons Que La Discipline Et La Sécurité N'Existent Pas - Rereading Foucault's Collége De France Lectures (With Paul Veyne), Bernard E. Harcourt

Faculty Scholarship

We have come to know well and deploy easily the Foucauldian terms discipline and sécurité (what we now call governmentality), especially as a result of Michel Foucault's 1978 and 1979 lectures at the College de France. What we know less well, I contend, is how to critique them – discipline and sécurité, that is – the way that Foucault critiqued the terms folie, délinquance, or sexualité.

In this essay, I push further my meditations on punishment and subject discipline and sécurité to the same brutal method that Foucault used in his writings on folie, délinquance, and sexualité. I begin by …

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

Making Sense Of Nation-Level Bankruptcy Filing Rates, Ronald J. Mann

Faculty Scholarship

Increased rates of consumer bankruptcy filings are a policy concern around the world. It is not easy, however, to explain the variations in per capita filing rates from country to country. Some of the variation is attributable to different levels of indebtedness. Some is attributable to different cultural attitudes about financial failure. And some is attributable to the accessibility of the legal system as a remedy for irremediable financial distress.

This paper analyzes the differences in nation-level, per capita filing rates. I start with a model that uses economic variables to explain nation-level variations in filing rates. The economic and …

On The Value Of Distributional Equality, Joseph Raz

Faculty Scholarship

The paper returns to the question whether equality in distribution is valuable in itself, or, if you like, whether it is intrinsically valuable. Its bulk is an examination of two familiar arguments against the intrinsic value of distributional equality: the levelling down objection and the objection that equality violates some person-affecting condition, in that its realisation does not improve the lot of people.

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …

A Multilateral Solution For The Income Tax Treatment Of Interest Expenses, Michael J. Graetz

Faculty Scholarship

Recent developments – including greater taxpayer sophistication in structuring and locating international financing arrangements, increased government concerns with the role of debt in sophisticated tax avoidance techniques, and disruption by decisions of the European Court of Justice of member states' regimes limiting interest deductions – have stimulated new laws and policy controversies concerning the international tax treatment of interest expenses. National rules are in flux regarding the financing of both inbound and outbound transactions.

Heretofore, the question of the proper treatment of interest expense has generally been looked at from the perspective of either inbound or outbound investment. As a …

Sarbanes-Oxley's Effects On Small Firms: What Is The Evidence?, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley

Faculty Scholarship

This article presents an overview of the regulatory regime created by the Sarbanes-Oxley Act of 2002 (SOX) and its implications for small firms. We review the available evidence in three distinct domains: compliance costs, stock price reactions, and firms' decisions to exit regulated securities markets.

Crafting A Scholarly Persona: A Panel Discussion, Ian Ayres, Paul H. Robinson, Carol Sanger, Kimberly Kessler Ferzan

Faculty Scholarship

This is an edited transcript of Crafting a Scholarly Persona, the Scholarship Section's program from the AALS Annual Meeting in 2007. During this program, three established scholars, Ian Ayres, Paul Robinson, and Carol Sanger, discussed their individual career paths – How they chose their article topics, what the goals of their scholarship are, how they view their research agendas, etc. The discussion was intended roughly to mirror Bravo's Inside the Actor's Studio.

The Argument From Justice, Or How Not To Reply To Legal Positivism, Joseph Raz

Faculty Scholarship

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited …

Model Uncertainty And The Deterrent Effect Of Capital Punishment, Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, Daniel Nagin

Faculty Scholarship

The reintroduction of capital punishment after the end of the Supreme Court moratorium has permitted researchers to employ state level heterogeneity in the use of capital punishment to study deterrent effects. However, no scholarly consensus exists as to their magnitude. A key reason this has occurred is that the use of alternative models across studies produces differing estimates of the deterrent effect. Because differences across models are not well motivated by theory, the deterrence literature is plagued by model uncertainty. We argue that the analysis of deterrent effects should explicitly recognize the presence of model uncertainty in drawing inferences. We …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …