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Articles 1 - 30 of 46
Full-Text Articles in Social and Behavioral Sciences
Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler
Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler
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“QALYs” (Quality-Adjusted Life Years) are a metric for health and longevity very widely employed by health researchers. Surveys are used to assign health states a quality ranking on zero-one scale, with zero representing a health state no better than death and one perfect health. The total QALY value of a health profile is calculated as the time spent in its component health states, each weighted by its quality. Until a few years ago, despite the huge academic literature on QALY measurement, this approach was seldom used by policymakers in the U.S. But there have been recent signs of governmental interest …
Equity Analysis And Natural Hazards Policy, Matthew D. Adler
Equity Analysis And Natural Hazards Policy, Matthew D. Adler
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What is an “equitable” policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see “equity” or “distribution” as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can cost-benefit analysis. This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is individualistic, not group-based; ex post, not ex …
The Corporate Form As A Solution To A Discursive Dilemma, Edward B. Rock
The Corporate Form As A Solution To A Discursive Dilemma, Edward B. Rock
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I examine the connection between the discursive dilemma and corporate law. The discursive dilemma (or doctrinal paradox) is a distinctive social choice problem that was first identified by Kornhauser and Sager and later used as the basis for a theory of organizational personality by Pettit. I examine the ways in which the corporate form prevents the emergence of the discursive dilemma in the firm context and the extent to which the presence of the discursive dilemma can provide the foundation for a theory of corporate personality.
Imputed Conflicts Of Interest In International Law Practice, Geoffrey C. Hazard Jr.
Imputed Conflicts Of Interest In International Law Practice, Geoffrey C. Hazard Jr.
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No abstract provided.
Discounts And Exclusions, Herbert J. Hovenkamp
Discounts And Exclusions, Herbert J. Hovenkamp
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The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost …
Theories Of The Employment Relationship: Choosing Between Norms And Contracts, Michael L. Wachter
Theories Of The Employment Relationship: Choosing Between Norms And Contracts, Michael L. Wachter
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In this paper, I analyze three types of labor market relationships that are prevalent in the economy - the external labor market that exists outside of firms, and the union and nonunion employment relationships that exist inside firms. The parties' relationships in each of these markets are markedly different from one another with respect to their use of contracts versus norms, their enforcement mechanisms, and their reliance on external competitive market pressures. Why do these very distinct forms exist? This paper provides an answer to this question. To be successful, each of the structures has to resolve problems of match-specific …
Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley
Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley
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Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that …
Against 'Individual Risk': A Sympathetic Critique Of Risk Assessment, Matthew D. Adler
Against 'Individual Risk': A Sympathetic Critique Of Risk Assessment, Matthew D. Adler
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"Individual risk" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term "population risk" to mean the number of deaths caused by some hazard. By contrast, "individual risk" is the incremental probability of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to individual risk are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as …
The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill
The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill
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This Article addresses the ongoing-and, indeed, accelerating process of sporadic, piecemeal, and unnecessary legislation leading to increasing inconsistencies and irrationalities in American criminal law. After a wave of modernization in the I960s and 1970s, the past generation has not witnessed further advances, but rather a serious and growing degradation of most criminal codes. This Article offers several insights regarding criminal code degradation. First, it provides specific and concrete examples of degradation and its harmful effects. Second, drawing on their experiences as participants in the recent reform efforts of Illinois and Kentucky, the authors offer an insider's view of how the …
White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
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This symposium essay speculates about how Booker's loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing. Prosecutors' punishment intuitions and the strong white-collar defense bar will keep white-collar sentencing from growing as harsh as drug sentencing, but the parallels are nonetheless ominous. The essay suggests that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and adding shaming punishments and apologies to give moderate prison sentences more bite.
Justice Harry Blackmun And The Phenomenon Of Judicial Preference Change, Theodore Ruger
Justice Harry Blackmun And The Phenomenon Of Judicial Preference Change, Theodore Ruger
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No abstract provided.
The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax
The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax
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No abstract provided.
The Academic Tournament Over Executive Compensation, William W. Bratton
The Academic Tournament Over Executive Compensation, William W. Bratton
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No abstract provided.
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
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Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …
Law, Ethics And Mystery, Geoffrey C. Hazard Jr.
Law, Ethics And Mystery, Geoffrey C. Hazard Jr.
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No abstract provided.
"Lawyers For Lawyers": The Emerging Role Of Law Firm Legal Counsel, Geoffrey C. Hazard Jr.
"Lawyers For Lawyers": The Emerging Role Of Law Firm Legal Counsel, Geoffrey C. Hazard Jr.
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No abstract provided.
Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton
Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton
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No abstract provided.
Privatization And Punishment In The New Era Of Reprogenetics, Dorothy E. Roberts
Privatization And Punishment In The New Era Of Reprogenetics, Dorothy E. Roberts
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No abstract provided.
The Community Dimension Of State Child Protection, Dorothy E. Roberts
The Community Dimension Of State Child Protection, Dorothy E. Roberts
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No abstract provided.
Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard
Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard
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When Congress enacted the Private Securities Litigation Reform Act in 1995 (“PSLRA”), the Act’s “lead plaintiff” provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel’s compensation.
Congress’s stated purpose in enacting the lead plaintiff provision was to encourage institutional investors—pension funds, mutual …
Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer
Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer
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No abstract provided.
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
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No abstract provided.
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
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No abstract provided.
A National Issue: Segregation In The District Of Columbia And The Civil Rights Movement At Mid-Century, Wendell E. Pritchett
A National Issue: Segregation In The District Of Columbia And The Civil Rights Movement At Mid-Century, Wendell E. Pritchett
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No abstract provided.
Beyond Network Neutrality, Christopher S. Yoo
Beyond Network Neutrality, Christopher S. Yoo
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In this Article, Professor Yoo takes issue with the emerging scholarly consensus in favor of ""network neutrality,"" which would prohibit network owners from employing proprietary protocols or entering into exclusivity agreements with content providers that would reduce the transparency of the Internet. Economic theory suggests that network neutrality advocates are focusing on the wrong policy problem. Rather than directing attention on the market for Internet content and applications, the segments of the industry that are the most competitive and the most likely to remain that way, communications policy would be better served if the focus were placed on the segment …
Managing Gerrymandering, Mitchell N. Berman
Managing Gerrymandering, Mitchell N. Berman
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Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
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The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …
Images Of Representation, Elizabeth Magill
Images Of Representation, Elizabeth Magill
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This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine.
This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One …
Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi
Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi
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Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on an …
Unfinished Business: The Fading Promise Of Ada Enforcement In The Federal Courts Under Title I And Its Impact On The Poor, Louis S. Rulli, Jason A. Leckerman
Unfinished Business: The Fading Promise Of Ada Enforcement In The Federal Courts Under Title I And Its Impact On The Poor, Louis S. Rulli, Jason A. Leckerman
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No abstract provided.