Fairness And The Willingness To Accept Plea Bargain Offers, 2010 Notre Dame Law School
Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor
In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.
Introduction: Expansion And Contraction In Monopolization Law, 2010 Notre Dame Law School
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and ...
Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, 2010 Notre Dame Law School
Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor
The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited ...
In Memoriam: Professor Michael Goldsmith, 2010 Notre Dame Law School
In Memoriam: Professor Michael Goldsmith, G. Robert Blakey
No abstract provided.
Governing? Gentrifying? Seceding? Real-Time Answers To Questions About Business Improvement Districts, 2010 Notre Dame Law School
Governing? Gentrifying? Seceding? Real-Time Answers To Questions About Business Improvement Districts, Nicole Stelle Garnett
Business improvement districts (BIDs) have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new sublocal, quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether BIDs ...
Regulating The Invisible: The Case Of Over-The-Counter Derivatives, 2010 Notre Dame Law School
Regulating The Invisible: The Case Of Over-The-Counter Derivatives, Colleen M. Baker
In this Article, I focus on the regulation of the over-the-counter (OTC) derivative markets. I argue that current reform proposals and draft legislation fall short of constructing the linked domestic and international frameworks needed to successfully regulate the OTC derivative markets. The purpose of my Article is to propose and defend such a framework. Because of the inseparability of the domestic and international aspects of this issue, I argue that in addition to increased prudential supervision and regulation, the regulation of OTC derivative markets requires interwoven domestic and international systems for regulatory cooperation. This recommendation has two parts. First, Congress ...
Re-Examining Customary International Law And The Federal Courts: An Introduction, 2010 Notre Dame Law School
Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia
Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States's constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts.
The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos ...
Unbundling Homeownership: Regional Reforms From The Inside Out, 2010 Notre Dame Law School
Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape ...
Federal Regulation Of State Court Procedures, 2010 Notre Dame Law School
Federal Regulation Of State Court Procedures, Anthony J. Bellia
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe ...
Responses To The Ten Questions, 2010 Notre Dame Law School
Responses To The Ten Questions, Mary Ellen O'Connell
No abstract provided.
Catholic Schools, Urban Neighborhoods, And Education Reform, 2010 Notre Dame Law School
Catholic Schools, Urban Neighborhoods, And Education Reform, Margaret F. Brinig, Nicole Stelle Garnett
More than 1,600 Catholic elementary and secondary schools have closed or been consolidated during the last two decades. The Archdiocese of Chicago alone (the subject of our study) has closed 148 schools since 1984. Primarily because urban Catholic schools have a strong track record of educating disadvantaged children who do not, generally, fare well in public schools, these school closures have prompted concern in education policy circles. While we are inclined to agree that Catholic school closures contribute to a broader educational crisis, this paper shies away from debates about educational outcomes. Rather than focusing on the work done ...
Exiting Litigation, 2010 Notre Dame Law School
Exiting Litigation, Jay Tidmarsh
The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.
Irrelevent Confusion, 2010 Notre Dame Law School
Irrelevent Confusion, Mark Mckenna, Mark A. Lemley
Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.
As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can ...
Substantive Canons And Faithful Agency, 2010 Notre Dame Law School
Substantive Canons And Faithful Agency, Amy Coney Barrett
Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons as ...
Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, 2010 Notre Dame Law School
Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson
For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best ...
Disclosures About Disclosure, 2010 Notre Dame Law School
Disclosures About Disclosure, Lloyd Hitoshi Mayer
An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which ...
The Choice Of Law Against Terrorism, 2010 Notre Dame Law School
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.
Resolving Cases On The Merits, 2010 Notre Dame Law School
Resolving Cases On The Merits, Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Twenty-Eight Words: Enforcing Corporate Fiduciary Duties Through Criminal Prosecution Of Honest Services Fraud, 2010 Notre Dame Law School
Twenty-Eight Words: Enforcing Corporate Fiduciary Duties Through Criminal Prosecution Of Honest Services Fraud, Lisa L. Casey
This article examines the federal government's growing use of 18 U.S.C. § 1346 to prosecute public company executives for breaching their fiduciary duties. Section 1346 is a controversial but under-examined statute making it a felony to engage in a scheme "to deprive another of the intangible right of honest services." Although enacted by Congress over twenty years ago, the Supreme Court repeatedly declined to review the statute, until now. In 2009, Justice Antonin Scalia pointed to the numerous interpretive questions dividing the federal appellate courts and proclaimed that it was "quite irresponsible" to let the "current chaos prevail ...
Whom Should A Catholic University Honor?: "Speaking" With Integrity, 2010 Notre Dame Law School
Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett
No abstract provided.