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Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein May 2003

Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian …


Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone May 2003

Toward A More Communitarian Future? Fukuyama As The Fundamentalist Secular Humanist, June Carbone

Michigan Law Review

With The End of History and the Last Man, Francis Fukuyama established himself as the prophet of liberal democracy and free markets, heralding their triumph as the only form of governance capable of commanding legitimacy. Asked to reflect on his predictions a decade later, Fukuyama concluded that the greatest threat to liberalism comes from biotechnology because it alone has the potential to remake the human nature that liberal democracy was designed to serve. Fukuyama makes a compelling case that biotechnology may produce developments that should concern us; he is ironically less persuasive in articulating a liberal-democratic framework for governing the …


Reauthorizing Head Start: The Future Federal Role In Preschool Programs For The Poor, Jane Koppelman Apr 2003

Reauthorizing Head Start: The Future Federal Role In Preschool Programs For The Poor, Jane Koppelman

National Health Policy Forum

This paper describes the implications of President Bush’s proposal to devolve authority for running the Head Start program to the states and to alter the organization and funding of all government early childhood programs—with the goal of improving the school readiness skills of low-income children. The administration plan to allow states to mix Head Start funds with state-funded preschool money and, if desired, child care monies to create a more uniform early childhood care system with an educational focus raises numerous questions. This paper addresses questions raised by this plan, including the potential quality of these new systems, the extent …


Rights And Duties Of Childrearing, Peter Vallentyne Apr 2003

Rights And Duties Of Childrearing, Peter Vallentyne

William & Mary Bill of Rights Journal

No abstract provided.


Children's Associational Rights?: Why Less Is More, Emily Buss Apr 2003

Children's Associational Rights?: Why Less Is More, Emily Buss

William & Mary Bill of Rights Journal

No abstract provided.


Unlawful Combatants Or Prisoners Of War: The Law And Politics Of Labels, Manooher Mofidi, Amy E. Eckert Apr 2003

Unlawful Combatants Or Prisoners Of War: The Law And Politics Of Labels, Manooher Mofidi, Amy E. Eckert

Cornell International Law Journal

No abstract provided.


The Incoherence Of Punishment In Antitrust, Spencer Weber Waller Apr 2003

The Incoherence Of Punishment In Antitrust, Spencer Weber Waller

Chicago-Kent Law Review

Antitrust has a complex set of criminal and civil remedies enforced by a multiplicity of public and private actors. Antitrust remedies are frequently analyzed from the point of view of deterrence and compensation, but only rarely from the perspective of punishment. The few debates about punishment concern whether defendants are over-punished or under-punished. This Article analyzes a different question about punishment in antitrust—namely that total punishment in any given antitrust case varies dramatically for offenses with identical or similar status under the law and there is no a prioi way to predict punishment levels for a particular case or a …


Urban Biosphere Reserves: Integrating Conservation, Community And Sustainability, Jennifer L. Eastman Apr 2003

Urban Biosphere Reserves: Integrating Conservation, Community And Sustainability, Jennifer L. Eastman

William & Mary Environmental Law and Policy Review

No abstract provided.


Breast Still Best: An Argument In Favor Of One Hiv Positive Mother's Right To Breastfeed, Monique Anikwue Apr 2003

Breast Still Best: An Argument In Favor Of One Hiv Positive Mother's Right To Breastfeed, Monique Anikwue

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred Apr 2003

Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


The Meaning Of Educational Adequacy: The Confusion Of Derolph, Patricia F. First, Barbara Deluca Apr 2003

The Meaning Of Educational Adequacy: The Confusion Of Derolph, Patricia F. First, Barbara Deluca

The Journal of Law and Education

No abstract provided.


Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner Apr 2003

Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner

Public Law and Legal Theory Working Papers

Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations – regulations that restrict behavior such as pollution – and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis, but …


Myths Of Voluntary Compliance: Lessons From The Starlink Corn Fiasco, Rebecca M. Bratspies Apr 2003

Myths Of Voluntary Compliance: Lessons From The Starlink Corn Fiasco, Rebecca M. Bratspies

William & Mary Environmental Law and Policy Review

No abstract provided.


Transfer Regulations And Cost Effectiveness Analysis, Eric A. Posner Apr 2003

Transfer Regulations And Cost Effectiveness Analysis, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations—regulations that restrict behavior such as pollution—and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be …


Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne Apr 2003

Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne

William & Mary Law Review

No abstract provided.


Behavioral Approach To Analyzing Corporate Failures, A. Mechele Dickerson Apr 2003

Behavioral Approach To Analyzing Corporate Failures, A. Mechele Dickerson

Faculty Publications

Recent corporate failures indicate that existing laws fail to give boards of directors adequate incentives to acknowledge that some financially troubled firms simply cannot be salvaged. Relying primarily on insights from law and behavioral science literature, this Article notes that directors have a natural tendency to underestimate risks and overestimate their ability to save an insolvent or near insolvent firm. This Article urges the imposition of a duty to file a timely bankruptcy petition because such a duty will encourage directors to consider the interests of all the firms' constituents, including workers, creditors, and the local community, when making decisions …


Pressing Precaution Beyond The Point Of Cost-Justification, Gregory C. Keating Apr 2003

Pressing Precaution Beyond The Point Of Cost-Justification, Gregory C. Keating

Vanderbilt Law Review

Years ago, Bruce Ackerman contrasted two competing perspectives on law, that of the "ordinary observer" and that of the "scientific policymaker."' The perceptions and discourse of the "ordinary observer," Ackerman explained, start from the common practices and language of laymen. The "scientific policymaker" takes the realization of particular objectives-efficient precaution against risks of accidental injury and death, for example-as her end and uses the law as an instrument toward that end. Clashes between these two perspectives are endemic to our legal culture. Nowhere in the law of accidents is that conflict sharper than in cases where the risks imposed threaten …


Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger Mar 2003

Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger

Faculty Scholarship

No abstract provided.


Cultural Pluralism And International Rights, Kory Sorrell Mar 2003

Cultural Pluralism And International Rights, Kory Sorrell

Tulsa Journal of Comparative and International Law

No abstract provided.


Children's Associational Rights? Why Less Is More, Emily Buss Mar 2003

Children's Associational Rights? Why Less Is More, Emily Buss

Public Law and Legal Theory Working Papers

No abstract provided.


Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger Mar 2003

Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger

Faculty Scholarship

No abstract provided.


Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger Mar 2003

Muddy Property: Generating And Protecting Information Privacy Norms In Bankruptcy, Edward J. Janger

William & Mary Law Review

Bankruptcy law does not deal well with website promises to protect personal information. The legal treatment of privacy policies in bankruptcy currently turns on whether such policies are viewed as creating contract rights or property rights. Neither characterization fits well, and any attempt to shoehorn information privacy into either category has significant costs. Contract obligations are subject to discharge in bankruptcy, and any consumer expectations of privacy (contractual or otherwise) are likely to be defeated. By contrast, if personal information is deemed property of the website customer, information transfers that might benefit consumers will be stifled. This Article develops an …


Inside Unlv, Gian Galassi, Jennifer Vaughan, Carol C. Harter, Carolyn Sabo Mar 2003

Inside Unlv, Gian Galassi, Jennifer Vaughan, Carol C. Harter, Carolyn Sabo

Inside UNLV

No abstract provided.


"Never Forget What They Did Here": Civil War Pensions For Gettysburg Union Army Veterans And Disability In Nineteenth-Century America, Peter Blanck, Chen Song Feb 2003

"Never Forget What They Did Here": Civil War Pensions For Gettysburg Union Army Veterans And Disability In Nineteenth-Century America, Peter Blanck, Chen Song

William & Mary Law Review

No abstract provided.


Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham Jan 2003

Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham

Law & Economics Working Papers Archive: 2003-2009

Should there be pain-and-suffering damages in tort law? Most legal economists who wrote on the subject that there should not be pain-and-suffering damages in tort law. A minority of scholars thought the decision of whether tort law should provide pain-and-suffering damages is an empirical, or an experimental, question that cannot be armchair-theorized. Yet, all scholars who have done empirical or experimental work to explore the desirability of pain-and-suffering damages reached the conclusion that it is undesirable. In this paper I argue that the majority view cannot serve as a policy-making aid. I side with the minority of scholars who argue …


Law & Health Care Newsletter, V. 10, No. 2, Spring 2003 Jan 2003

Law & Health Care Newsletter, V. 10, No. 2, Spring 2003

Law & Health Care Newsletter

No abstract provided.


Genetic Health And Eugenics Prededents: A Voice Of Caution, Larry I. Palmer Jan 2003

Genetic Health And Eugenics Prededents: A Voice Of Caution, Larry I. Palmer

Florida State University Law Review

No abstract provided.


A Comparative Study Of The Law Of Palliative Care And End-Of-Life Treatment, Denuta Mendelson, Timothy Stoltzfus Jost Jan 2003

A Comparative Study Of The Law Of Palliative Care And End-Of-Life Treatment, Denuta Mendelson, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.


Indigenous Peoples, Indigenous Farmers: Nafta's Threat To Mexican Teosinte Farmers And What Can Be Done About It, Keith Sealing Jan 2003

Indigenous Peoples, Indigenous Farmers: Nafta's Threat To Mexican Teosinte Farmers And What Can Be Done About It, Keith Sealing

American University International Law Review

No abstract provided.


Message Deleted? Resolving Physician-Patient E-Mail Through Contract Law, Michael Mccann Jan 2003

Message Deleted? Resolving Physician-Patient E-Mail Through Contract Law, Michael Mccann

Law Faculty Scholarship

This article examines the impact of e-mail on the physician-patient relationship, and how contract law can resolve the uncertainties incumbent in this nascent form of communication. Significantly, courts have yet to indicate when the physician-patient relationship begins by e-mail, or to what extent e-mail affects the duties of the relationship. Instead of waiting for judicial guidance, physicians and patients can employ specialized contracts to clarify the role that e-mail plays in their relationship. As a result, more physicians and patients will regard e-mail correspondence as a valuable means of communication, and a tool for improving the quality of health care …