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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 ...


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.


Language Diversity In The Workplace, Cristina M. Rodríguez Jan 2006

Language Diversity In The Workplace, Cristina M. Rodríguez

Faculty Scholarship Series

In March of 2005, the manager of a Dunkin' Donuts in Yonkers, New
York, stirred some local controversy when he posted a sign inviting customers
to complain if they heard employees behind the counter speaking a
language other than English. A day later, the manager removed the sign,
responding to vociferous complaints that it amounted to discrimination.
While the mini-drama was not itself an unusual event-English-only rules
have become increasingly common in the American workplace-the episode
did not follow the predictable script. The manager, who acted on his
own, was himself a native Spanish speaker-an immigrant from Ecuador.
He claimed ...


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 ...


Standing Together, Harold Hongju Koh Jan 2006

Standing Together, Harold Hongju Koh

Faculty Scholarship Series

I am proud to follow so many illustrious past award winners and delighted to receive the award on behalf of a very special place, Yale Law School, about which I will have more to say in a moment.


Mark Janis And The American Tradition Of International Law, Harold Hongju Koh Jan 2006

Mark Janis And The American Tradition Of International Law, Harold Hongju Koh

Faculty Scholarship Series

I come here today to celebrate Mark Janis and his new and important book on the American tradition of international law, I which represents only the latest of his many, wonderful contributions to international legal scholarship. I first met Mark twenty-seven years ago, in the fall of 1978, when I was interviewing for a job as a summer associate at Sullivan and Cromwell, where he was then a young associate. Mark took me out to lunch, and over the course of our lunchtime discussion, I leamed of his remarkable background: that in addition to working at one of the world ...


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 ...


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 ...


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 ...


The Past And Future Of The Claim Of Preemptive Self-Defense, W. Michael Reisman, Andrea Armstrong Jan 2006

The Past And Future Of The Claim Of Preemptive Self-Defense, W. Michael Reisman, Andrea Armstrong

Faculty Scholarship Series

The claim by the United States to a right of what has come to be known as "preemptive selfdefense" has provoked deep anxiety and soul-searching among the members of the college of international lawyers. Some have feared that the claim signaled a demand for the prospective legitimation of "Pearl Harbor" types of actions, that is, sudden, massive, and destructive military actions "out of the blue," by one state against another in the absence of a state of war, with the objective of militarily neutralizing or even eliminating a latent or potential adversary. Since some public intellectuals within the American political ...


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 ...


Jury Trial And The Principles Of Transnational Civil Procedure, Geoffrey C. Hazard Jr. Jan 2006

Jury Trial And The Principles Of Transnational Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship Series

The Principles of Transnational Civil Procedure are compatible with
jury trial, as in the American common law system, and also with the
nonjury trial procedures in other common law systems and in the civil
law systems. From a comparative law perspective, it is instructive to
consider the procedural virtues of the jury system, which are often
ignored, while also considering the off-voiced criticisms of the jury
system. These procedural virtues include ones that are "mechanical" but
nevertheless important.


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 ...


Ya-Huh: There Are And Should Be Penalty Defaults, Ian Ayres Jan 2006

Ya-Huh: There Are And Should Be Penalty Defaults, Ian Ayres

Faculty Scholarship Series

In two separate articles, Eric Maskin and Eric Posner attack the positive and normative bases of penalty defaults. Posner claims that there are no penalty defaults in contract law, and Maskin seems to claim that penalty defaults are not efficient.

This response refutes these claims. Posner can only come to his positive assessment by inappropriately carving away at what constitutes a default, what constitutes my model, and what constitutes a penalty default. Maskin's conclusion at most only limits the contexts where penalty defaults are efficient, and his counterexample to the Ayres and Gertner Hadley model is premised on an ...


Menus Matter, Ian Ayres Jan 2006

Menus Matter, Ian Ayres

Faculty Scholarship Series

Lawmakers can affect contractual equilibria by regulating contractual menus. The potential impact of menu regulation grows more important in contexts where contractors are cognitively constrained or imperfectly informed. This Essay explores the regulation of menus—both with regard to the simultaneous, alternative offers that private parties make to each other, and with regard to the offers that the state makes to potential contractors themselves.


Recovering American Administrative Law: Federalist Foundations, 1787-1801, Jerry L. Mashaw Jan 2006

Recovering American Administrative Law: Federalist Foundations, 1787-1801, Jerry L. Mashaw

Faculty Scholarship Series

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative ...


First Amendment Bargains, Ian Ayres Jan 2006

First Amendment Bargains, Ian Ayres

Faculty Scholarship Series

Before starting formally, let me pause to say that it is quite an honor to participate in this celebration. When I think of the properties of Carol Rose, I think first of her laugh. It is a wonderfully exuberant cackle which, when in full bloom, often causes her head to tilt slightly back. She has a way of laughing after delivering a tangy barb that somehow diffuses the sting. I know it's not possible, but sometimes I hear her laugh when I'm reading her footnotes.

This laugh is a great pedagogical gift. When Carol was teaching me property ...


Mark(Et)Ing Nondiscrimination: Privatizing Enda With A Certification Mark, Ian Ayres, Jennifer Gerarda Brown Jan 2006

Mark(Et)Ing Nondiscrimination: Privatizing Enda With A Certification Mark, Ian Ayres, Jennifer Gerarda Brown

Faculty Scholarship Series

People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, eighty-eight percent of respondents said that "homosexuals should . . . have equal rights in terms of job opportunities." Even prominent social conservatives—such as George W. Bush—give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong.

But gay rights advocates have achieved only modest legal reform on this issue. Seventeen states have prohibited employment discrimination against gays and lesbians. A seemingly modest bill, the Employment Non-Discrimination Act (ENDA), which only ...


What Is The Internal Point Of View?, Scott J. Shapiro Jan 2006

What Is The Internal Point Of View?, Scott J. Shapiro

Faculty Scholarship Series

John Austin famously claimed that the idea of sanctions is “the key to the science[] of jurisprudence.” Thus, he held legal rules to be threats backed by sanctions and statements of legal obligations as predictions that the threatened sanctions will be carried out. And before The Concept of Law was published in 1961, the concept of sanctions was central to every other positivistic theory of law as well. Although Hans Kelsen sought to explain legal rules and obligations in terms of norms, he understood these norms to be directives to courts requiring that sanctions be applied. Splitting the difference between ...


Commercial Banking And Democracy: The Illusive Quest For Deregulation, Jonathan R. Macey Jan 2006

Commercial Banking And Democracy: The Illusive Quest For Deregulation, Jonathan R. Macey

Faculty Scholarship Series

Government regulation is often necessary, sometimes in heavy doses, for private markets to function effectively. This Article presents three case studies from the banking industry to support this thesis. The first case study, the deregulation of Savings and Loans in the early 1980s, is a good example of how deregulation can produce disastrous results and market failures. The second case study examines an EPA regulation which allows banks to avoid liability when demanding that borrowers comply with environmental laws-a socially optimal result. The third study considers the regulation of deposit insurance. Deposit insurance and its regulation prevents bank runs and ...


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.


Executive Branch Usurpation Of Power: Corporations And Capital Markets, Jonathan R. Macey Jan 2006

Executive Branch Usurpation Of Power: Corporations And Capital Markets, Jonathan R. Macey

Faculty Scholarship Series

Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branches because it can respond faster to perceived emergencies. Congress is hampered more than the executive by gridlock caused by special-interest group pressures when it tries to act quicky. The legislative process is also inherently slower than the executive process because the executive can launch into unilateral action, as by filing a lawsuit. The executive's structural advantage over the ...


Trembling In The Ivory Tower, Robert W. Gordon Jan 2006

Trembling In The Ivory Tower, Robert W. Gordon

Faculty Scholarship Series

It is often said that legal writers pick up ideas about ten to fifteen years after they have been broached and discussed elsewhere. This book, by a law professor at the University of Baltimore, would seem to illustrate the point. It bears a copyright date of 2003 but reads as if written back during the height of the Culture Wars of the late 1980s or early 1990s. It certainly echoes many books that were written then, such as Roger Kimball's Tenured Radicals (1990) and Dinesh D'Souza's Illiberal Education (1991).


The Law School, The Profession, And Arthurs' “Humane Professionalism”, Robert W. Gordon Jan 2006

The Law School, The Profession, And Arthurs' “Humane Professionalism”, Robert W. Gordon

Faculty Scholarship Series

Julian Webb has done us all a service with his sympathetic reconstruction of Harry Arthurs' celebrated 1983 report on legal education, Law and Leaming/Le droit et Ie savoir. Read again today, the report has all the character of its principal author: it is humane, generous, and rational; ambitious in aim though modest in tone; and acerbically direct in its diagnosis of what is wrong with legal education and what needs to be put right. It took aim at what was then the almost exclusive, and remains the dominant, occupation of the law schools, teaching doctrinal black-letter law. Indeed one ...


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 ...


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 ...


Federalism, Peter H. Schuck Jan 2006

Federalism, Peter H. Schuck

Faculty Scholarship Series

The title of this session, Rebuilding Nation-Building, suggests another necessary distinction-between nation-building and nationmaintaining. It is not enough to build a nation if the nation cannot be maintained. Today, enormous centrifugal pressures are tending to fracture nations. Russia is a particularly important example; Iraq is another. Although we talk about whether and how the new state of Iraq can be built, the reality is that there are at least three nations within Iraq-the Shia, the Sunni, and the Kurds-that must somehow be contained and integrated in a very creative way, about which Chibli Mallat will surely have more to say ...


Incorporating Race, Richard R.W. Brooks Jan 2006

Incorporating Race, Richard R.W. Brooks

Faculty Scholarship Series

Common law courts have for centuries regarded corporations as artificial persons—colorless, invisible, intangible persons. Yet, recently some courts have ruled that corporations can and do possess racial identities "as a matter of law." This Article explores the practical and theoretical implications of this ruling, both for our understanding of corporate personality and of race. In doing so, the Article develops an economic model of race based on representations and interpretations of racial signals and commitments. This model is used to suggest an approach to antidiscrimination law that avoids racial essentialism and an approach to corporate law that complicates shareholder ...


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.


A Law Unto Itself?, Harold Hongju Koh Jan 2006

A Law Unto Itself?, Harold Hongju Koh

Faculty Scholarship Series

In an uncertain world, crisis demands executive action. And so 2005, a year of crisis, became a year of executive muscle-flexing, in response to crises ranging from Hurricane Katrina to avian flu to the Global War on Terror. In many ways, the legal debates generated were déjà vu all over again. Exorbitant claims of executive power in the War on Terror triggered the strongest clash since the Iran-Contra Affair between a constitutional vision of unchecked executive discretion bottomed on sweeping dicta in United States v. Curtiss- Wright Export Corp. and a counter-vision of shared institutional powers symbolized by Justice Jackson ...