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The Relative Costs Of Incorporating Trade Usage Into Domestic Versus International Sales Contracts, Avery W. Katz Jan 2004

The Relative Costs Of Incorporating Trade Usage Into Domestic Versus International Sales Contracts, Avery W. Katz

Faculty Scholarship

This Comment expands upon Clayton Gillette's defense of Article 8(2) of the Convention on the International Sale of Goods (CISG), which directs tribunals to incorporate international trade usage into private contracts governed by the Convention, unless the parties agree otherwise. The Comment attempts to offer a more robust and systematic account of when substantive interpretative doctrines such as trade usage might be desirable, as well as why such doctrines appear to be especially useful in the transnational setting of the CISG. It argues that Gillette's account is incomplete because he does not provide an explanation of why ...


Copyright's Communications Policy, Tim Wu Jan 2004

Copyright's Communications Policy, Tim Wu

Faculty Scholarship

This paper suggest that the main challenges for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy. Since its inception copyright has set important baselines upon which publishers and their modern equivalents compete.business. As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship.

The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the ...


The International Privacy Regime, Tim Wu Jan 2004

The International Privacy Regime, Tim Wu

Faculty Scholarship

Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.

First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that ...


Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman Jan 2004

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is ...


Derivatives And The Bankruptcy Code: Why The Special Treatment?, Franklin R. Edwards, Edward R. Morrison Jan 2004

Derivatives And The Bankruptcy Code: Why The Special Treatment?, Franklin R. Edwards, Edward R. Morrison

Faculty Scholarship

The collapse of Long Term Capital Management (LTCM) in Fall 1998 and the Federal Reserve Bank's subsequent efforts to orchestrate a bailout raise important questions about the structure of the Bankruptcy Code. The Code contains numerous provisions affording special treatment to financial derivatives contracts, the most important of which exempts these contracts from the "automatic stay" and permits counterparties to terminate derivatives contracts with a debtor in bankruptcy and seize underlying collateral. No other counterparty or creditor of the debtor has such freedom; to the contrary, the automatic stay prohibits them from undertaking any act that threatens the debtor ...


The Broadband Debate: A User's Guide, Tim Wu Jan 2004

The Broadband Debate: A User's Guide, Tim Wu

Faculty Scholarship

What follows is a basic guide to the policy divisions in the broadband debate that have emerged and some suggested areas of reconciliation. For simplicity sake I divide the argument to a debate between the openists and the deregulationists.

The summary is critical. I fault the openists for being too prone to favor regulation without making clear the connection between ends and means. For example, too few openists have asked the degree to which the structural open access remedies pushed by independent service providers actually promote the openists' vision. Meanwhile, I fault the deregulationists two reasons. First, the deregulationists have ...


On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley Jan 2004

On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley

Faculty Scholarship

Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This paper investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of ...


The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger Jan 2004

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO ...


Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer Jan 2004

Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer

Faculty Scholarship

By now, it is well understood that aggressive tax planning among high-income individuals and corporations represents a grave threat to the U.S. tax system, and that derivatives are staples of this planning. In response, the usual recommendation is consistency, which means that the same tax treatment should apply to economically comparable bets, regardless of what form is used. Yet because consistency is unattainable, this Article develops an alternative theory: Policymakers should strive instead for balance. This means that for each risky position, the treatment of gains should match the treatment of losses. For example, if the government bears 15 ...


Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt Jan 2004

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their forthcoming article Suspect Searches: Assessing Police Behavior Under the U.S. Constitution to be published in Criminology & Public Policy (2004). By their conservative estimate, 30 percent of the 115 police searches they studied violated the Fourth Amendment. The vast majority of the unconstitutional searches were invisible to the courts, having resulted in no arrest, charge, or citation. Focusing exclusively on stop-and-frisk searches, an even higher proportion – 46 percent – was unconstitutional. Moreover, 84 percent of the searches involved African-American suspects.

The new study paints a troubling ...


Conflicts In Property, Hanoch Dagan, Michael Heller Jan 2004

Conflicts In Property, Hanoch Dagan, Michael Heller

Faculty Scholarship

Property concerns conflicts – both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law that help manage conflicts of interest: (1) internalization of externalities; (2) democratization of management; and (3) de-escalation of transactions. We ...


Wrongs Of Ignorance And Ambiguity: Lawyer Responsibility For Collective Misconduct, William H. Simon Jan 2004

Wrongs Of Ignorance And Ambiguity: Lawyer Responsibility For Collective Misconduct, William H. Simon

Faculty Scholarship

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to Enron. Actors, especially lawyers, seek to limit responsibility by avoiding knowledge and clear articulation. This essay considers this phenomenon from the point of view of both business organization and legal doctrine. Evasive ignorance and ambiguity seem endemic to a particular organizational model and to a traditional model of legal responsibility. Developments in both law and business, however, suggest that these models are being superceded. Many of the most dynamic businesses now emphasize practices of "transparency" designed to inhibit evasive ignorance and calculated ambiguity. A major ...


Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault Jan 2004

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters ...


On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley Jan 2004

On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley

Faculty Scholarship

Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This article investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of ...


Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg Jan 2004

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Faculty Scholarship

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court's rhetorical support for morals-based lawmaking and the Court's jurisprudence. In taking this approach, the article aims to respond a central post-Lawrence question concerning the continuing vitality of a government's moral agenda as a sufficient justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations ...


The Role Of Well-Being, Joseph Raz Jan 2004

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares and ...


"You Are Entering A Gay- And Lesbian-Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers, Bernard E. Harcourt Jan 2004

"You Are Entering A Gay- And Lesbian-Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers, Bernard E. Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The court's ruling is the coup de grace to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal ...


Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott Jan 2004

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Recently, the privileged legal status of marriage has become the subject of political and academic controversy. Some feminist critics argue that marriage, the source of women's subordination, is outmoded as a family form and that its privileged status should be abolished. Others argue that informal cohabitation unions should be subject to the same legal treatment as marriage. Representative of this approach is a recent A.L.I. proposal that creates a domestic partnership status for cohabiting couples. On the other side of the debate, most defenders of marriage tend to be religious and social conservatives who favor traditional marriage ...


Corporate Governance, Executive Compensation And Securities Litigation, Eric L. Talley, Gudrun Johnsen Jan 2004

Corporate Governance, Executive Compensation And Securities Litigation, Eric L. Talley, Gudrun Johnsen

Faculty Scholarship

It is generally accepted that good corporate governance, executive compensation and the threat of litigation are all important mechanisms for incentivizing managers of public corporations. While there are significant and robust literatures analyzing each of these policy instruments in isolation, their mutual relationship and interaction has received somewhat less attention. Such neglect is mildly surprising in light of a strong intuition that the three devices are structurally related to one another (either as complements or substitutes). In this paper, we construct an agency cost model of the firm in which corporate governance protections, executive compensation levels, and litigation incentives are ...


The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke Jan 2004

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that allows gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke ...


On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt Jan 2004

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars, Bernard E. Harcourt

Faculty Scholarship

Say the words "gun registration" to many pro-gun Americans and you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the Holocaust. One of the more curious twists in the historical debate, though, is that the most vocal opponent of this argument is also pro-gun. It is the National Alliance, a white supremacist organization. According to them, "German Firearms legislation under Hitler, far ...


Contextual Analysis Of Tax Ownership, Alex Raskolnikov Jan 2004

Contextual Analysis Of Tax Ownership, Alex Raskolnikov

Faculty Scholarship

Ownership is one of the most fundamental concepts in tax law, yet it is remarkably confused. The uncertainty inhibits tax planning, leads to inconsistent responses from the government, and produces unexpected outcomes in the courts. There has been no shortage of scholarly attention to the issue, but most of the commentary has been either exceedingly narrow or focused on far-reaching reforms. As a result, the law of tax ownership lacks conceptual foundation. This Article attempts to remedy the deficiency. It proposes a comprehensive approach to tax ownership and demonstrates that the doctrine may (and should) be significantly clarified without a ...


Sexual Tensions Of Post-Empire, Katherine M. Franke Jan 2004

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has ...


The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz Jan 2004

The Efficient Design Of Option Contracts: Principles And Applications, Avery W. Katz

Faculty Scholarship

The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part ...


Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon Jan 2004

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the ...


Scrubbing The Wash Sale Rules, David M. Schizer Jan 2004

Scrubbing The Wash Sale Rules, David M. Schizer

Faculty Scholarship

Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the timing option inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value).

The wash sale regime of Section 1091 is one of our system's most important brakes on the timing option. Yet it is only a slight exaggeration to say that compliance with the regime is voluntary for very wealthy taxpayers – or, at ...


Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann Jan 2004

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

Faculty Scholarship

The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards here and elsewhere contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Because increasing financial distress imposes substantial externalities on the economies in which it occurs, the global rise ...


Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan Jan 2004

Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan

Faculty Scholarship

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual contracting provide some evidence that coercive sanctions may crowd out self enforcement, implying that too great a propensity by external actors to intervene in the contractual relationship may produce welfare losses. We explore the possibility that too much coercive third-party enforcement similarly can reduce the value of international agreements.

We argue ...


Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz Jan 2004

Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The standard contract that governs friendly mergers contains a material adverse change clause (a "MAC") and a material adverse effect clause (a "MAE"); these clauses permit a buyer costlessly to cancel the deal if such a change or effect occurs. In recent years, the application of the traditional standard-like MAC and MAE term has been restricted by a detailed set of exceptions that curtails the buyer's ability to exit. The term today engenders substantial litigation and occupies center stage in the negotiation of merger agreements. This paper asks what functions the MAC and MAE term serve, what function the ...


The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg Jan 2004

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included the right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever one's conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a personality right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of ...