Law Commons^™

There Is No Single Field Of Law And Development, Katharina Pistor

Faculty Scholarship

Let me begin – following Ohnesorge following Trubek and Santos – with the notion that the concepts of “law and development” and “rule of law” are closely intermingled with the process of legal reform in developing countries and the role foreign advisers and multilateral institutions play in that undertaking. Describing the “field” in this fashion reveals that the glue that holds together a set of disparate activities by disparate actors (for under what other circumstances do we assume common ground between family and securities lawyers, or professors and world bankers?) is a shared belief in the virtue of law.

Lessons Learned: Transferring The European Union's Experience With Energy Efficiency Policy To China, Shelley Welton

All Faculty Scholarship

The European Union (EU) has been at the vanguard of passing forward-thinking energy efficiency policies over the past two decades, although it is still grappling with achieving full implementation of these policies. More recently, China has also been active in making energy efficiency a part of its national energy strategy. However, China has struggled to craft effective energy efficiency laws and to achieve implementation of these laws throughout the country. If successful, the potential for improvements and energy savings in China is tremendous. China has begun to decouple its GDP and its growth in energy consumption over the past twenty …

Passive Discrimination: When Does It Make Sense To Pay Too Little?, Jonah B. Gelbach, Jonathan Klick, Lesley Wexler

All Faculty Scholarship

Economists have long recognized employers’ ability to construct benefits packages to induce workers to sort themselves into and out of jobs. For instance, to encourage applications from individuals with a highly valued but largely unobservable characteristic, such as patience, employers might offer benefits that patient individuals are likely to value more than other individuals. By offering a compensation package with highly valued benefits but a relatively low wage, employers will attract workers with the favored characteristic and discourage other individuals from applying for or accepting the job. While economic theory generally views this kind of self-selection in value neutral terms, …

Sex And Slavery: An Analysis Of Three Models Of State Human Trafficking Legislation, Melynda Barnhart

Articles & Chapters

No abstract provided.

Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett

Cornell Law Faculty Publications

It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing.

To analyze maximization language on the one hand, and equalization and identification language …

Time Out, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

An Analysis Of The Implementation And Impact Of The 2004-2005 Amendments To The Community Reinvestment Act Regulations: The Continuting Importance Of The Cra Examination Process, Josh Silver, Richard D. Marsico

Articles & Chapters

In 2004 and 2005, the four federal banking agencies that enforce the Community Reinvestment Act (CRA) amended their CRA regulations. Community groups were concerned that these amendments would have a negative impact on bank CRA performance. In particular, they were concerned that community development lending and investment and the provision of bank branches and other banking services in low- and moderate-income neighborhoods would decline. This article studies the impact of the changes. In summary, the study found that: 1) the CRA examination process has an impact on bank behavior; 2) community development lending and investment by certain lending institutions declined …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of …

The Regulation Of Medical Malpractice In Japan, Robert Leflar

Robert B Leflar

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts' adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; …

Haunted By Brown, Robert Lipkin

Robert Justin Lipkin

No abstract provided.

Peer Producing Human Rights, Molly Land

Molly K. Land

Can there be a Wikipedia for human rights? The growth of collaborative technologies has spurred the development of projects such as Wikipedia, in which large groups of volunteers contribute to production in a decentralized and open format. The author analyzes how these methods of peer-based production can be applied to advance international human rights as well as the limitations of such a model in this field. An underlying characteristic of peer-based production, amateurism, increases capacity and participation. However, the involvement of ordinary individuals in the production of human rights reporting is also its greatest disadvantage, since human rights reports generated …

Parallel Lines Never Meet: Why The Military Disability Retirement And Veterans Affairs Department Claim Adjudication Systems Are A Failure, Thomas Reed

Thomas J Reed

Service members who are injured or come down with a disease while on active duty have two roads to seek compensation for disability benefits that are part of the enlistment contract. The first road is military disability retirement, administered by the armed services. The second road is VA compensation administered by the cabinet-level Department of Veterans Affairs. Both systems are near collapse due to a backlog of undecided claims and manifest injustices in awarding benefits to disabled veterans and dependents.

Professor Reed proposes a radical reform of the dual compensation system by combining military disability retirement and VA benefits into …

Educating Lawyers For The Global Economy: National Challenges, Carole Silver

Carole Silver

This essay addresses the challenge of educating law students to work in an increasingly global context. For students enrolled in United States law school, insight into the ways in which globalization matters can be drawn from the structural approaches to globalization of US-based law firms. These firms pursue their international practices by integrating lawyers educated and licensed in the firm’s home country (the US) and in the host jurisdictions in which the firm has offices. As a result, the success of the firm in its international practice depends upon the ability of its lawyers to develop strong and effective cross-national …

Between Diffusion And Distinctiveness In Globalization: U.S. Law Firms Go Glocal, Carole Silver

Carole Silver

No abstract provided.

Understanding The Prop 8 Litigation: The Scope Of Direct Democracy And Role Of Judicial Scrutiny, Ronald Steiner

Ronald L. Steiner

Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are …

The Fragile Relevance Of Laborem Exercens, Thomas Kohler

Thomas C. Kohler

No abstract provided.

Decline To State: Diversity Talk And The American Law Student, Camille Gear Rich

Camille Gear Rich

No abstract provided.

The Financial Sector Upheaval Of 2008: Sociological Antecedents And Their Implications For Investment Company Regulation, Larry Barnett

Larry D Barnett

In 2008, the United States experienced a severe contraction in the availability of credit, a marked reduction in the price of common stocks, and an appreciable increase in interest rates on debt instruments issued by business entities and by state and local governments. The premise of the instant article is that, although this upheaval was economic in form and sudden in occurrence, it stemmed from change that was sociological in character and that started in prior decades. Specifically, the 2008 upheaval in finance is traced to a shift in social values among Americans - namely, an increased prevalence of hedonism …

Protecting Rights Online, Molly Land

Molly K. Land

Although the human rights and access to knowledge (A2K) movements share many of the same goals, their legal and regulatory agendas have little in common. While state censorship online is a central concern for human rights advocates, this issue has been largely ignored by the A2K movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture. These disparate agendas reflect fundamentally different views about what states should regulate and the role of international institutions. Overcoming this divide is critical to ensuring the movements can draw on their respective strengths to …

Off-Court Misbehavior: Sports Leagues And Private Punishment, Janine Young Kim, Matthew J. Parlow

Janine Kim

A Commentary On The Old Saw That Same-Sex Marriage Threatens Civilization, Ronald L. Steiner

Ronald L. Steiner

Discussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects …

Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau

Vincent D. Rougeau

In this essay, I will consider how law, religion, and democratic pluralism revolve around a particular issue: global migration. I use the term "global migration" to encompass a number of related issues that are often collapsed under the term "immigration." In nations that have constructed their identities around waves of settlers or migrants-places like the United States, Canada, Australia, and New Zealand-immigration involves the formal reception of foreigners into the host country as potential new citizens.' This is just one part of the migration of peoples around the globe. Migration also encompasses emigration, asylum, economic migration, and undocumented or irregular …

The University As Constructed Cultural Commons, Katherine J. Strandburg, Michael J. Madison, Brett M. Frischmann

Brett Frischmann

This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.

Flying Passports Of Convenience, Karl T. Muth

Karl T Muth

This paper proposes an economic alternative to the legal construct of citizenship that currently dominates international law.

The Debt Financing Of Parenthood, Melissa B. Jacoby

Melissa B. Jacoby

In this contribution to the symposium Show Me the Money: Making Markets in Forbidden Exchange, I explore an under-appreciated participant in the assisted reproduction and adoption industries: consumer lenders. Through fertility clinics and other service providers, financial institutions market and distribute loans specifically to finance acquisition of treatments, drugs, and human eggs. Adoption foundations and agencies advertise for-profit loans to intended parents, while small foundations offer adoption loans that appear to be low-cost financially but may condition loan approval on intended parent characteristics such as religious observance, marital status, sexual orientation, and adherence to traditional gender roles. After discussing how …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Conversations In Equity And Social Justice: Constructing Safe Schools For Queer Youth, Donn Short

Donn Short

No abstract provided.

Home Mortgage Problems Through The Lens Of Bankruptcy, Melissa B. Jacoby

Melissa B. Jacoby

Based on a lecture at a predatory lending conference at Loyola University New Orleans School of Law, this brief paper discusses the 2007 Consumer Bankruptcy Project and how the empirical study of bankruptcy law informs our understanding of the intersection of mortgages and homeownership with financial distress, and whether bankruptcy can provide meaningful redress.

Cyber Crimes And Effectiveness Of Laws In India To Control Them, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Lgbt Elder Law: Toward Equity In Aging, Nancy J. Knauer

Nancy J. Knauer

At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal. The concerns of LGBT elders …