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The Coase Theorem And Arthur Cecil Pigou, Herbert J. Hovenkamp

All Faculty Scholarship

In "The Problem of Social Cost" Ronald Coase was highly critical of the work of Cambridge University Economics Professor Arthur Cecil Pigou, presenting him as a radical government interventionist. In later work Coase's critique of Pigou became even more strident. In fact, however, Pigou's Economics of Welfare created the basic model and many of the tools that Coase's later work employed. Much of what we today characterize as the "Coase Theorem," including the relevance of transaction costs, externalities, and bilateral monopoly, was either stated or anticipated in Pigou's work. Further, Coase's extreme faith in private bargaining led him to fail …

Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi

Kamaal Zaidi

The rule of law is often difficult to establish in developing nations characterized by frequent political changes and unstable events that affect the separation of powers between the three branches of government – the executive, legislature, and judiciary. In particular, the integrity of the judiciary is often damaged by influences from the executive and legislative branches in that core democratic principles are promoted, including civil liberties, the supremacy of law, law and order, and transparency and accountability among government actors. In Pakistan, turbulent political events over the years have irreparably damaged the ability of the Supreme Court of Pakistan to …

Paul V. The Clintons, Et Al: Fec Complicity And A Plea For Real And Present Campaign Finance Reform, Ellis Washington

Ellis Washington

This Article is an analysis of current legislation, case law and election law policy regarding campaign finance disclosure rules and the need for a truly independent Federal Election Commission to efficiently enforce existing election laws. Admittedly, this article isn’t as theoretical as other scholarly works on this subject, however, since campaign finance reform is a rather complex subject, I didn’t want to get caught up in the endless minutiae of legislative and court opinion other than a general review in the context of the case at bar as well as the present state of campaign finance reform policy. I also …

Getting Property Right: Informal Mortgages In The Japanese Courts, Frank George Bennett

Frank George Bennett Jr.

In Japan's civil law property system, courts recognize a form of extra-statutory security, the jōto tanpo or “title-transfer security interest”, that is created by conveying legal title to the creditor, with a promise to restore title to the debtor upon repayment. This commercial practice pre-dates the deployment of the nation's modern system of alienable title, and as such its modern treatment in the courts provides an informative window on forces that shape a property system undergoing rapid change in the face of economic expansion. When the Civil Code was enacted at the end of the 19th century, recognition of “title-transfer …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski

Adam J. Sulkowski

This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …

Turkish Cross-Border Operations Into Northern Iraq: International Law And Use Of Force Analysis, Charles Bowers

Charles Bowers

No abstract provided.

People As Crops, Evelyn L. Wilson

Evelyn L. Wilson

In 1807, Congress passed a law prohibiting the importation of slaves. The South began to feel the effect of labor shortages and prices escalated. To meet this demand, farmers in the upper south states, especially Virginia, began the systematic breeding of slaves for sale to the southwest. Through the use of statements from Virginia statesmen and from some of Virginia’s former slaves, my paper discusses slave breeding, first as a consequence of slavery, as an added benefit to the labor obtained from the slave.

My father was born in Virginia, as was his father, as was his father, as was …

Who Needs The Stock Market? Part I: The Empirical Evidence, Lawrence E. Mitchell

Lawrence E. Mitchell

Data on historical and current corporate finance trends drawn from a variety of sources present a paradox. External equity has never played a significant role in financing industrial enterprises in the United States. The only American industry that has relied heavily upon external financing is the finance industry itself. Yet it is commonly accepted among legal scholars and economists that the stock market plays a valuable role in American economic life, and a recent, large body of macroeconomic work on economic development links the growth of financial institutions (including, in the U.S, the stock market) to growth in real economic …

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone

John P Cerone

Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? Once the individual has been deemed a subject of positive international law, the requirement of state affiliation is no longer essential to analytical coherence. The issue becomes simply whether international law should directly …

The Neoclassical Crisis In U.S. Competition Policy, 1890-1960, Herbert Hovenkamp

Herbert Hovenkamp

ABSTRACT The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition policy. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem. As a result many early twentieth century economists were hostile toward the antitrust laws. The ruinous competition debate came to an abrupt end in the early 1930's, when economists Joan Robinson in Great Britain and particularly Edward Chamberlin in the United States …

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy

David T. Hardy

This article reflects a transcription of the lecture notes of St. George Tucker, relevant to the newly ratified Bill of Rights. Tucker lectured law at the College of William and Mary from 1790 to 1804, and was well informed on the legal events of his day, with a brother in the first Senate and a friend in the First House. Tucker's notes reflect an astonishingly modern, and broad, view of the Bill of Rights' protections. His notes recently came to some prominence, being debated last term by majority and dissent in District of Columbia v. Heller.

The Story Of Article 9 Of The Japanese Constitution, Kenneth L. Port

Kenneth L. Port

Abstract Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each “story” of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of …

United States V. Hatahley: A Legal Archaeology Case Study Of Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …

Curriculum Reform In Context, 1870-2008: Understanding And Overcoming The Limitations Of Contemporary Legal Education, William A. Langer

William A Langer

Curriculum Reform in Context, 1870-2008: Understanding and Overcoming the Limitations of Contemporary Legal Education

William Langer

In 2006, the law schools at Harvard and Stanford announced plans to implement innovative reforms to their traditional legal curricula. While the two law schools’ reform programs are quite different from one another, they both proceed on the premise that legal education has not kept pace with the changes that have taken place in the law, the legal profession, and the global economy over the last several decades, and that the traditional form of legal education, centered around the “case method,” has long been …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional "bundle" of rights, patents secure only a negative right to exclude. In exploring the history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding legal doctrines, …

North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead

Tamar R Birckhead

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …

The Political Origins Of Secular Public Education: The New York City School Controversy, 1840-1842, Ian C. Bartrum

Ian C Bartrum

THE ORIGINS OF SECULAR PUBLIC EDUCATION: THE NEW YORK SCHOOL CONTROVERSY, 1840-1842 As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy’s legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes’ objection to nonsectarianism as …

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate opinions …

Mr. Justice Blackstone: The Commentator On Common Pleas, Emily Kadens

EMILY KADENS

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a …

Overreaction Then (Korematsu) And Now (The Detainee Cases), Fritz Snyder, Geri Fox

Geri Fox

Overreacting to tragic events leads to even more tragedy. When it is the government which overreacts, individual constitutional rights can vanish. The fear, anger, and patriotism engendered during a war or by a terrorist attack can Aundermine the capacity of individuals and institutions to make clearheaded judgments about risk, fairness, and danger .... Reason and logic vanish. It is difficult to make calm, balanced decisions in a state of personal anxiety, outrage, or passion. Overreaction occurs, and individual rights disappear. Even the United States Supreme Court can get swept away. This article uses the Korematsu case as a case study …

An Intellectual History Of Judicial Activism, Roger Craig Green

Roger Craig Green

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms …

Crime And Moral Condemnation, John H. Bogart

John H Bogart

“Crime and Moral Condemnation” considers the relationship between enforcement of criminal law and moral condemnation of conduct by examining the enforcement of California’s feticide statute over a 50 year period in Sacramento. The article focuses in particular on the trial of Dr. T. Wah Hing, one of only three persons prosecuted during the period, and for whom a full trial transcript exists. The article suggests that abortion was not the object of widespread moral condemnation for reasons in addition to the paucity of prosecution, and that enforcement of the feticide statute was more the result of action by the California …

Gender And The Chinese Legal Profession In Historical Perspective: From Heaven And Earth To Rule Of Woman?, Mary Szto

Mary Szto

This article first discusses the current phenomenon of women judges and male lawyers in China. Many women have joined the ranks of the Chinese judiciary because this is considered a stable job conducive to caring for one’s family, as opposed to being a lawyer, which requires business travel and heavy client entertaining. I then trace this phenomenon to ancient views of Heaven, earth, gender and law in China. In this yin/yang framework, men had primary responsibility for providing sustenance for both this life and the life to come and women were relegated to the “inner chambers”. Also, law was secondary …

American Balancing And German Proportionality: The Historical Origins, Iddo Porat, Moshe Cohen-Eliya

Iddo Porat

American Balancing and German proportionality: The Historical Origins Iddo Porat and Moshe Cohen-Eliya Abstract American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed …