Digital Commons Network^™

The Dubious Constitutionality Of The Copyright Term Extension Act, Richard A. Epstein

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No abstract provided.

Market Evidence In Corporate Law, Daniel R. Fischel

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Ways Of Criticizing Public Choice: The Uses Of Empiricism And Theory In Legal Scholarship, Tom Ginsburg

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Public choice theory has been used to explain a wide range of observable facts. It has also been influential in legal scholarship. In Part I of this article, Tom Ginsburg reviews the main premises behind public choice theory and discusses how these premises have fared when tested empirically. In this section, for example, the author discusses how casual empirical observation of the "free rider" problem suggests that individuals do not always seek to maximize their own self-interest. The author further points out that additional studies, like Ostrom's empirical observations of a Turkish fishery, are necessary in order to explain why …

Measured Interpretation: Introducing The Method Of Correspondence Analysis To Legal Studies, Bernard E. Harcourt

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Professor Harcourt develops and advocates a method to more rigorously measure and evaluate how qualitative "social meaning" variables relate to legal practices and public policies. The method integrates in-depth qualitative interviews with an experimental free associational component, map analysis of the interviews, and a methodology, correspondence analysis, that remains little known in the United States despite its acceptance in other parts of the world. Correspondence analysis, according to Professor Harcourt, is a tool that allows researchers to visually represent the relationship between structures of social meaning and the contexts and practices within which they are embedded. This method opens up …

Joint Teaching With A Colleague, For Just A Week Or Two, Richard Henry Seamon

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Exploring Paths To Recovery For Osha Whistleblowers: Section 11(C) Of The Oshact And The Public Policy Tort, Monique C. Lillard

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Enforcing Existing Rights Introduction, Cass R. Sunstein

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Is There A Constitutional Right To Clone?, Cass R. Sunstein

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Outrage Leary Lecture, Cass R. Sunstein

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Philippic.Com, Cass R. Sunstein

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A recent trend in so-called "second generation" legal commentary about the Internet suggests that, though it is an unparalleled communication medium and a means of engaging in global e-commerce, it is not an unmitigated force for good. Instead, the Net poses a fundamental danger to democracy. This trend takes shape in works by well-known cyberlaw theorists like Lawrence Lessig, Andrew Shapiro, and Neil Weinstock Netanel, but the most recent and most troubling criticism lies in Professor Cass Sunstein 's Republic.com. In this book, Professor Sunstein argues that perfect filtering of information on the Internet will lead to a fractured communications …

Predictably Incoherent Judgments, Cass R. Sunstein, Daniel Kahneman, Ilana Ritov, David Schkade

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When people make moral or legal judgments in isolation, they produce a pattern of outcomes that they would themselves reject, if only they could see that pattern as a whole. A major reason is that human thinking is category-bound. When people see a case in isolation, they spontaneously compare it to other cases that are mainly drawn from the same category of harms. When people are required to compare cases that involve different kinds of harms, judgments that appear sensible when the problems are considered separately often appear incoherent and arbitrary in the broader context. Another major source of incoherence …

Switching The Default Rule, Cass R. Sunstein

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There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. Professor Cass R. Sunstein explains that the default rule can create an endowment effect, making employees value certain rights more, simply because they have been granted such rights in the first instance. New evidence, based on a survey of law students, is introduced to show a significant endowment effect in the context of vacation time. Similarly, the default rule for savings plans, set by employers or by law, seems …

What's Available - Social Influences And Behavioral Economics Empirical Legal Realism: A New Social Scientific Assessment Of Law And Human Behavior, Cass R. Sunstein

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Parenthood Divided: A Legal History Of The Bifurcated Law Of Parental Relations, Jill Elaine Hasday

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The Principle And Practice Of Women's 'Full Citizenship': A Case Study Of Sex-Segregated Public Education, Jill Elaine Hasday

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U.S. Announces Intent Not To Ratify International Criminal Court Treaty, Curtis A. Bradley

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The Juvenile Death Penalty And International Law, Curtis A. Bradley

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The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal and historical materials, litigants and scholars are increasingly claiming that the United States’ use of the juvenile death penalty violates international law. This Article examines the validity of this claim,from the perspective of both the international legal system and the U.S. legal system.

Based on a detailed examination of the United States’ interaction with treaty regimes and international institutions since the late 1940s,the Article concludes that the international law arguments against the juvenile death penalty have …

Economic Structure Of Renegotiation And Dispute Resolution In The World Trade Organization, The Rational Choice And International Law, Alan O. Sykes, Warren F. Schwartz

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The treaty creating the World Trade Organization (WTO) replaced the General Agreement on Tariffs and Trade (GATT) dispute resolution system, which contained no formal sanctions for breach of agreement as a practical matter, with a system that results in centrally authorized sanctions against recalcitrant violators of WTO trade agreements. We examine the important features of the new system and argue that the institutionalization of a sanctioning mechanism was not motivated by a perceived need to increase the penalty for violations, but rather by a need to decrease the penalty. In particular, the GATT system relied on unilateral retaliation and reputation …

Domestic Regulation, Sovereignty, And Scientific Evidence Requirements: A Pessimistic View, Alan O. Sykes

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No abstract provided.

Manhattan The Vast Wasteland Revisited, Cass R. Sunstein

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The Fallacy Of The Sovereign Prerogative To Set De Minimis Liability Rules For Sexual Slavery, Mary D. Fan

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Although several treaties prohibited slavery by the early twentieth century, forced prostitution was treated as distinct from slavery and considered a domestic issue on which each sovereign state could legislate independently. The article explores the sovereign's prerogative to determine whether to set property or liability rules for sexual slavery. May bodies -- typically women's bodies -- be taken by force with compensation set ex post in liability rules by the state? Or do property rules prohibit such conscription? The article argues that while historically, it was the sovereign's prerogative to set property or liability rules, an international property rule protecting …

Taxes Vs. Fees: A Curious Confusion, Hugh D. Spitzer

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Provides an analytical framework for categorizing varoius types of taxes and user charges and distinguishing between them, applying both economic and legal concepts.

Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend

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This Article considers interdisciplinarity and the legal curriculum in the context of probability and statistics. Section D of Part II begins the discussion by sketching some multidisciplinary, pluridisciplinary, interdisciplinary, and transdisciplinary approaches. Part III is the workhorse of this Article. The particular example used here is the well-known jury discrimination case of Castaneda v. Partida as described in Section A. This "case study" provides the basis for a crossdisciplinary experience that offers students an opportunity to think about law as a discipline. It is difficult for students to step back and look at law as a discipline when there is …

Atlantic Salmon, Pacific Bound: Initiative, Defiance, Courage, And Indian Tribes In Environmental Law, William H. Rodgers, Jr.

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I want to address my remarks to the students of the University of Maine School of Law who will face a great deal of unfinished legal business on the topics of salmon, Indian tribes, and environmental law.

Elsewhere, I have derived what I describe as the five virtues of effective action (genius, high-leveraging, symbolism, optimism, courage). People of achievement, lawyers or otherwise, are familiar with these virtues and display them in many creative forms.

Next, I will peer through this lens of effective action at some key moments in the history of Atlantic-Pacific Salmon Interactions. This coming together has been …

American-Style Justice In No Man's Land, Peter Nicolas

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This Article seeks to fill the gap in the existing literature by exploring the constitutional limits on federal court subject matter jurisdiction in the context of civil disputes arising in Indian Country and civil disputes arising elsewhere involving Indian tribes, tribal entities, and tribal members.

Part II of this Article catalogues the universe of "no forum" and "biased forum" jurisdictional quagmires with respect to civil disputes arising in Indian Country or those arising elsewhere involving Indian tribes, tribal entities, and tribal members, examining the existing legal obstacles that prevent federal, state, and tribal courts from exercising jurisdiction over the "no …

Emerging Issues In Electronic Contracting, Technical Standards And Law Reform, Jane K. Winn

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The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade.

Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

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My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

Public Vs. Proprietary Science: A Fruitful Tension?, Rebecca S. Eisenberg, Richard R. Nelson

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What should be public and what should be private in scientific research? The competitive sprint of public and private laboratories to complete the sequence of the human genome has brought this question to the fore. The same question frames the developing struggle over terms of access to human embryonic stem cell lines and the conflict between Microsoft and the open source movement over how best to promote software development. We expect such conflicts to become more widespread as the role of for-profit research expands in a broader range of scientific fields. Will science progress more swiftly and fruitfully if its …

Who Cares?, Adam C. Pritchard

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Jim Cox and Randall Thomas have identified an interesting phenomenon in their contribution to this symposium: institutional investors seem to be systematically "leaving money on the table" in securities fraud class actions. For someone who approaches legal questions from an economic perspective, the initial response to this claim is disbelief. As the joke goes, economists do not bend over to pick up twenty-dollar bills on the street. The economist knows that the twenty dollars must be an illusion. In a world of rational actors, someone else already would have picked up that twenty-dollar bill, so the effort spent bending over …

Default Rules In Sales And The Myth Of Contracting Out, James J. White

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In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.