Public Law and Legal Theory Commons^™

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context ...

Law Without The State: Legal Attributes And The Coordination Of Decentralized Collective Punishment, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Law and Economics Working Paper Series

Most social scientists take for granted that law is defined by the presence of a centralized authority capable of exacting coercive penalties for violations of legal rules. Moreover, the existing approach to analyzing law in economics and positive political theory works with a very thin concept of law that does not account for the distinctive attributes of legal order as compared with other forms of social order. Drawing on a model developed elsewhere, we reinterpret key case studies to demonstrate how a theoretically informed approach illuminates questions about emergence, stability, and function of law in supporting economic and democratic growth.

A Process Account Of The Endowment Effect: Voluntary Debiasing Through Agents And Markets, Jennifer Arlen, Stephan Tontrup

New York University Public Law and Legal Theory Working Papers

We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency ...

With Untired Spirits And Formal Constancy: Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg

Columbia Public Law & Legal Theory Working Papers

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance ...

A Process Account Of The Endowment Effect: Voluntary Debiasing Through Agents And Markets, Jennifer Arlen, Stephan Tontrup

New York University Law and Economics Working Papers

We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency ...

Shifting Seas: The Law's Response To Changing Ocean Conditions, Casey Schickling

Sea Grant Fellows Publications

No abstract provided.

From Here To Eternity: The Folly Of Perpetual Trusts, Lawrence W. Waggoner

University of Michigan Program in Law and Economics

Trusts that can operate for as many as a thousand years or even forever, typically for the benefit of the settlor’s descendants living from time to time, now and in the future, are all the rage in banking and estate-planning circles. Before 1986, when Congress passed the federal generation-skipping transfer tax (GST tax), settlors had little incentive and probably little desire to establish perpetual trusts, even though they were permitted to do so under the law of Wisconsin, South Dakota, or Idaho. The GST tax created an artificial incentive for the wealthy to establish such trusts.

The origin of ...

The Multinational Corporation As “The Good Despot”: The Democratic Costs Of Privatization In Global Settings, Eyal Benvenisti, Doreen Lustig

Tel Aviv University Law Faculty Papers

In 1861 John Stuart Mill published Considerations on Representative Government to discuss the justifications of democracy. The third chapter of this book explores why a government run by a good despot is unacceptable. In this article we revisit Mill's critique of the good despot to problematize the contemporary exercise of authority and influence by multinational companies especially in foreign countries. Inspired by Mill, we move away from the preoccupation of contemporary literature on privatization with the identity the actor (the question whether certain governmental functions must remain the province of public authorities) or the outcome of privatization (how it ...

Enforcement Redundancy And The Future Of Immigration Law, Adam B. Cox

New York University Public Law and Legal Theory Working Papers

It is commonplace for states to help enforce federal law. Indeed, "enforcement redundancy" is a widespread and typically unremarkable aspect of American federalism. Local police regularly arrest people for violating federal criminal law; states criminalize wide swaths of conduct, like dealing drugs, that are also federal offenses; and states often attach civil penalties to conduct, such as workplace discrimination, already proscribed by federal law. Nevertheless, in United States v. Arizona — the most significant immigration federalism case in decades — the Supreme Court vitiated Arizona’s efforts at redundant enforcement.

This Article explores why the Arizona Court rejected redundant enforcement and what ...

Political And Constitutional Obligation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem ...

Meaning In The Natural World, Joseph Vining

University of Michigan Program in Law and Economics

James Boyd White devoted much of his work to the rescue of meaning in language, art, and the human world. A turn to the natural world may underscore his confidence that an individual's statement of law can be more than a disguised expression of individual will and desire. This essay may also suggest one more way toward hope that a realistic sense of the natural world need not threaten confidence in the reality of beauty and meaning in our human world.

Notice And The New Deal, Mila Sohoni

New York University Public Law and Legal Theory Working Papers

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas — federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice — which includes the doctrines of vagueness, retroactivity, and the rule of lenity — evolved dramatically over the course of the New Deal to permit lesser clarity and to ...

(Re)Arrangement Of State/Islam Relations In Egypt’S Constitutional Transition, Gianluca Paolo Parolin

New York University Public Law and Legal Theory Working Papers

After briefly framing state/shari‘ah relations in pre-2011 Egypt, the paper (1) describes the negotiations behind the (re)arrangement of shari‘ah-provisions in the new constitution, (2) analyzes the content of the new provisions in their Hegelian relation to the previous Supreme Constitutional Court jurisprudence—expounding on the complex articulation of the explanatory note to art. 2 (art. 219)—, and (c) considers the ramifications of the new arrangement, focusing on the impact of the mandatory referral to al-Azhar (art. 4).

Fixing Toxic Titles, Kermit J. Lind

Kermit J. Lind

This is a presentation using a PowerPoint along with supplemental reading. I define the term "toxic title" and describe problems it causes to communities and individuals. Potential solutions and preventive actions are proposed.

Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha, Anastasia D'Angelo

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

An Ethical Duty To Protect One’S Own Information Privacy?, Anita L. Allen

Scholarship at Penn Law

People freely disclose vast quantities of personal and personally identifiable information. The central question of this Meador Lecture in Morality is whether they have a moral (or ethical) obligation (or duty) to withhold information about themselves or otherwise to protect information about themselves from disclosure. Moreover, could protecting one’s own information privacy be called for by important moral virtues, as well as obligations or duties? Safeguarding others’ privacy is widely understood to be a responsibility of government, business, and individuals. The “virtue” of fairness and the “duty” or “obligation” of respect for persons arguably ground other-regarding responsibilities of confidentiality ...

Poverty Law, Scott L. Cummings, Jeffrey Selbin

Jeffrey Selbin

“Poverty law” refers to policy and lawyering strategies to contest inequality. The rise of the federal welfare state shaped the contours of poverty law in the first half of the twentieth century. This combined with the rights revolution at mid-century to mobilize legal services lawyers and courts in the War on Poverty, which was the zenith of the antipoverty movement. The welfare state’s subsequent decline and federal court retrenchment channeled the antipoverty movement in new directions forged by decentralization, privatization, and globalization: moving it downward (from federal to local), outward (from state to market), and beyond (from domestic to ...

The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan

Donald J. Kochan

ABSTRACT:

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence.

In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right ...

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down.

Leading up to the crisis, as securitization became vogue and the housing boom blurred ...

“Private” Means To “Public” Ends: Governments As Market Actors, Robert C. Hockett, Saule T. Omarova

Cornell Law Faculty Working Papers

Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity.

There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government ...