Jurisprudence Commons^™

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

Kafka E O Sistema Tributário Brasileiro: Uma Visão Pela Perspectiva Do Direito E Economia, Cristiano Carvalho

Cristiano Rosa de Carvalho

Prefácio ao livro Kafka Alienacao e Deformidade da Legalidade, de Eurico Marcos Diniz de Santi

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

Democracy, Law And Global Finance: A Legal And Institutional Perspective, Tamara Lothian

Tamara Lothian

Finance has become more a problem than a solution to what the world most wants: socially inclusive growth. It has become a source of crises that threaten the development of the real economy. It has escaped accountability to democratic institutions and often helped, instead, to influence and corrupt them. Its potential to contribute to broad-based opportunity-expanding growth has been largely and massively squandered.

In this piece I seek to understand not only how this failure manifests itself in some of the major countries and regions of the world, but also, how it can be corrected.

The intellectual and policy response …

El Principio De Precaución En La Jurisprudencia Constitucional Colombiana: Incertidumbre Científica Y Omisiones Selectivas, Camilo Ossa, Daniel Monroy

Camilo Ossa

En el presente artículo se propone hacer una lectura crítica al principio de precaución, buscando profundizar, de manera específica, algunas cuestiones que minan el equilibrio del principio como instrumento guía para la toma decisiones de quien corresponde tomarlas. Así, el artículo está estructurado en dos partes, (i) por un lado se aborda la cuestión teórica, desarrollando la concepción que, en la doctrina, se tiene frente al principio, teniendo en cuenta dos aspectos esenciales como son: las implicaciones que supone afronta la “incertidumbre científica”, elemento fundamental del principio; y, la defensa de la tesis según la cual en muchos casos la …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Classcrits Mission Statement, Justin Desautels-Stein, Angela P. Harris, Martha Mccluskey, Athena Mutua, James Pope, Ann Tweedy

Publications

No abstract provided.

Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Directors’ Legal Duties And Csr: Prohibited, Permitted Or Prescribed In Contemporary Corporate Law?, Benedict Sheehy, Donald Feaver

Benedict Sheehy

Abstract: The interaction between CSR obligations and directors’ legal duties is seriously under examined. This article addresses that lack by examining directors’ duties in case law and legislation across the major commonwealth countries and the USA. It provides an analysis of leading cases and examines how they deal with the issues of the shareholder primacy doctrine, corporate legal theory, CSR and directors’ duties. The article reviews fiduciary relations and duties, analyses the directors’ duties to exercise power in the best interests of the company as a whole and for proper purposes. As this area of law is highly contested there …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …

A Tributação Estratégica. Introdução À Teoria Dos Jogos No Direito Tributário., Cristiano Carvalho

Cristiano Rosa de Carvalho

O objetivo deste artigo é introduzir o campo de análise estratégica conhecido como Teoria dos Jogos aos operadores do direito tributário brasileiro.