Digital Commons Network^™

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

Check Clearing For The 21st Century Act - A Wrong Turn In The Road To Improvement Of The U.S. Payments System, The , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

The Check Clearing for the 21st Century Act' (Check 21 Act) was introduced to Congress by the Federal Reserve System, enacted by Congress, signed by the President on October 28, 2003, and became effective one year later, on October 28, 2004. It makes a modest change in the check-clearing system designed to speed the movement of checks from the depositary to the paying bank. It is anticipated that it will eventually lead to what is called "electronic presentment," a process that may make the clearing of checks almost as swift as to- day's electronic payment systems. This Article gives the …

"The Irresistible Force Meets The Immovable Object": When Antidiscrimination Standards And Religious Belief Collide In Aba-Accredited Law Schools, Kristin B. Gerdy

Faculty Scholarship

No abstract provided.

Friendship & The Law, Ethan J. Leib

Faculty Scholarship

This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses--family and special professional relationships are obvious ones--but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in …

Financial Information Failure And Lawyer Responsibility, Steven L. Schwarcz

Faculty Scholarship

When public firms collapse amid allegations of financial information failure-such as misleading financial statements-society looks beyond the role of accountants to see who else should be held responsible. Lawyers advising the firm increasingly are charged with responsibility, perhaps because modern financial and business complexities, as well as rules that make accounting determinations turn in part on legal conclusions, have blurred the boundary between legal and accounting duties. Lawyers should want to satisfy this responsibility not only to avoid liability but also to safeguard their reputation and integrity. The difficult question, which this article attempts to answer, is what that responsibility …

Thirst: A Short History Of Drinking Water, James Salzman

Faculty Scholarship

From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies. A social resource, access to water reveals much about membership in society. A political resource, the provision of water to …

Agency Law In Cyberspace, Deborah A. Demott

Faculty Scholarship

This short article articulates and defends the proposition that basic doctrines within common-law agency apply readily to transactions and other encounters effected through the internet. In cyberspace, as in physical space, common-law agency specifies the circumstances under which an actor's conduct should carry consequences for another person's legal position unless a statute provides otherwise. Recent cases illustrate an easy translation into cyberspace of concepts that are well-developed elsewhere, including the test of whether a particular relationship amounts to one of agency and whether a person acted with actual or apparent authority to bind another.

Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai

Faculty Scholarship

In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the …

Inside The Corporate Veil: The Character And Consequences Of Executives’ Duties, Deborah A. Demott

Faculty Scholarship

This paper is based on a keynote address to the 2006 annual workshop of the Australian Corporate Law Teachers' Association on "The Pathology of Corporate Law." The paper's thesis is that fuller understanding of many corporate malfunctions requires examination of organizational structures and patterns of interaction below the level of the board within a corporation's hierarchy. The paper argues that there is merit to mandating duties of skill and care at the executive level, drawing on examples of executive conduct in recent corporate fiascos. The paper also explores the application of the business judgment rule to officers. As conventionally formulated, …

Does The Plaintiff Matter?: An Empirical Analysis Of Lead Plaintiffs In Securities Class Actions, James D. Cox, Randall S. Thomas, Dana Kiku

Faculty Scholarship

With the enactment of the Private Securities Litigation Reform Act of 1995 (PSLR) the U.S. Congress introduced sweeping substantive and procedural reforms for securities class actions. A central provision of the Act is the lead plaintiff provision, which creates a rebuttable presumption that the investor with the largest financial interest in a securities fraud class action should be appointed the lead plaintiff for the suit. The lead plaintiff provision was adopted to encourage a class member with a large financial stake to become the class representative. Congress expected that such a plaintiff would actively monitor the conduct of a securities …

Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels

Faculty Scholarship

The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence. This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decision's enforceability elsewhere (indirect jurisdiction), are logically independent from each other. …

The Promise (And Limits) Of Neuroeconomics, Jedediah Purdy

Faculty Scholarship

Neuroeconomics - the study of brain activity in people engaged in tasks of reasoning and choice - looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This essay explains what is most exciting about the new field and lays out some specific research tasks for it. By enabling researchers to view the mind at work, neuroeconomics calls into question the value of a methodological premise of twentieth-century empiricism, sometimes called positivism or behaviorism: that people are black …

Better Regulation In Europe, Jonathan B. Wiener

Faculty Scholarship

"Better Regulation" is afoot in Europe. After several transatlantic conflicts over regulatory topics such as the precautionary principle, genetically modified foods, and climate change, Europe and America now appear to be converging on the analytic basis for regulation. In a process of hybridization, European institutions are borrowing "Better Regulation" reforms from both the US approach to regulatory review using benefit-cost analysis and from European member states' initiatives on administrative costs and simplification; in turn the European Commission is helping to spread these reforms among the member states. In many respects, the Better Regulation initiative promises salutary reforms, such as wider …

“Opening-Up” The Wto: What Does It Mean For China?, Joost H. B. Pauwelyn

Faculty Scholarship

Text of speech delivered at China University of Political Science and Law (CUPL), Beijing, October 9; Tsinghua Law School, Beijing, October 10; Wuhan University, WTO Center, October 12; Fudan University, Shanghai, October 13, 2006

In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl

Faculty Scholarship

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those …

A Transaction Cost Economizing Approach To Regulation: Understanding The Nimby Problem And Improving Regulatory Responses, Barak D. Richman, Christopher Boerner

Faculty Scholarship

This paper develops a transaction cost economic model for regulation and applies the model to environmental siting regulations designed to overcome NIMBY (Not In My Back Yard) political opposition. Negotiations between developers and resistant local communities to site waste facilities, such as landfills or solid waste incinerators, can be characterized as a contracting problem. A rudimentary application of the Coase theorem suggests that developers should be able to compensate communities adequately for hosting a waste facility, but rarely do such negotiations find success. Transaction costs associated with the requisite negotiations, communication, and implementation of the projects preclude efficient bargaining, and …

Two Paradigms Of Jurisdiction, Ralf Michaels

Faculty Scholarship

No abstract provided.

The News Media’S Influence On Criminal Justice Policy: How Market Driven News Promotes Punitiveness, Sara Sun Beale

Faculty Scholarship

This Article argues that commercial pressures are determining the news media's contemporary treatment of crime and violence, and that the resulting coverage has played a major role in reshaping public opinion, and ultimately, criminal justice policy. The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that frequently override traditional journalistic criteria for newsworthiness. This Article explores local and national television's treatment of crime, where the extent and style of news stories about crime are being adjusted to meet perceived viewer demand and advertising strategies, which frequently emphasize particular …

Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller

Faculty Scholarship

This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court’s decision in Crawford v. Washington (2004) that dramatically …

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle …

Enforcing The Avena Decision In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

The Complex Links Between Governance And Biodiversity, C. Barrett, C. Gibson, B. Hoffman, Mathew D. Mccubbins

Faculty Scholarship

We argue that two problems weaken the claims of those who link corruption and the exploitation of natural resources. The first is conceptual. Studies that use national level indicators of corruption fail to note that corruption comes in many forms, at multiple levels, and may or may not affect resource use. Without a clear causal model of the mechanism by which corruption affects resources, one should treat with caution any estimated relationship between corruption and the state of natural resources. The second problem is methodological: Simple models linking corruption measures and natural resource use typically do not account for other …

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Faculty Scholarship

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship

"Welfare polls" are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists.This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and …

The Missing Monitor In Corporate Governance: The Directors' & Officers' Liability Insurer, Tom Baker, Sean J. Griffith

Faculty Scholarship

This article reports the results of empirical research on the monitoring role of directors' and officers' liability insurance (D&O insurance) companies in American corporate governance. Economic theory provides three reasons to expect D&O insurers to serve as corporate governance monitors: first, monitoring provides insurers with a way to manage moral hazard; second, monitoring provides benefits to shareholders who might not otherwise need the risk distribution that D&O insurance provides; and third, the "bonding" provided by risk distribution gives insurers a comparative advantage in monitoring. Nevertheless, we find that D&O insurers neither monitor corporate governance during the life of the insurance …

Can Direct Democracy Be Made Deliberative?, Ethan J. Leib

Faculty Scholarship

Every election cycle a great number of citizens take to the polls to vote on public policy matters directly. Direct democracy has problems. And an account of deliberative democracy—far from being a source to critique direct democracy—might provide a solution. I have three goals here. First, I hope to identify some problems with the mechanisms of direct democracy that most states and many cities throughout the country employ: the initiative and the referendum. Next, I will offer a potential solution to these institutional problems using aspects of the theory of deliberative democracy, a theory often marshaled to undermine direct democracy. …