Digital Commons Network^™

The Greek Debt Restructuring: An Autopsy, Jeromin Zettelmeyer, Christoph Trebesch, Mitu Gulati

Faculty Scholarship

The Greek debt restructuring of 2012 stands out in the history of sovereign defaults. It achieved very large debt relief—over 50 percent of 2012 GDP—with minimal financial disruption, using a combination of new legal techniques, exceptionally large cash incentives, and official sector pressure on key creditors. But it did so at a cost. The timing and design of the restructuring left money on the table from the perspective of Greece, created a large risk for European taxpayers, and set precedents—particularly in its very generous treatment of holdout creditors—that are likely to make future debt restructurings in Europe more difficult.

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

Faculty Scholarship

No abstract provided.

Walking Back From Cyprus, Lee C. Buchheit, Mitu Gulati

Faculty Scholarship

Last Friday, the European leaders trespassed on consecrated ground by putting insured depositors in Cypriot banks in harm’s way. They had other options, none of them pleasant but some less ominous than the one they settled on.

Oh, The Treatise!, Richard A. Danner

Faculty Scholarship

This foreword to the Michigan Law Review’s 2013 Survey of Books Related to the Law considers the history of the American legal treatise in light of the well-known criticisms of legal scholarship published by Judge Harry Edwards in 1992. As part of his critique, Edwards characterized the legal treatise as “[t]he paradigm of ‘practical’ legal scholarship.” In his words, treatises “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Part I examines the origins …

A Temporary And Fond Farewell To The Edwin Dawson Rare Book Room, Femi Cadmus

Faculty Scholarship

No abstract provided.

Redefining Offer In Contract Law, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Parsing Parenthood, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Crimes Without Punishment An Update On Violence Against Women And Impunity In Guatemala, Karen Musalo, Blaine Bookey

Faculty Scholarship

No abstract provided.

I Like To Pay Taxes: Taxpayer Support For Government Spending And The Efficiency Of The Tax System, Yair Listokin, David M. Schizer

Faculty Scholarship

Why do people pay taxes? The simplest answer is that they have a legal obligation to do so. But it has long been recognized that this legal obligation alone provides an inadequate explanation for taxpaying behavior, just as legal obligations generally offer an inadequate explanation for most law-abiding activity.Another answer, then, is that some people pay taxes because – like Oliver Wendell Holmes – they like to do so. In other words, they appreciate that the government provides a vast array of public goods, such as rule of law, roads, schools, and aid to the poor, and find satisfaction in …

Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In his 1979 lectures at the Collège de France, The Birth of Biopolitics, Michel Foucault discussed and analyzed Gary Becker’s economic theory of crime and punishment, originally published in The Journal of Political Economy in 1968 under the title “Crime and Punishment: An Economic Approach.” In this historic, second encounter at the University of Chicago, Gary Becker responds to Foucault’s lectures and possible critical readings of his writings on crime and punishment, in conversation with Professors François Ewald (who was, at the time in 1979, Foucault’s assistant at the Collège and one of Foucault’s closest interlocutors) and Bernard Harcourt (a …

Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald

Faculty Scholarship

This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …

Updating The Competitive Tax Plan: A New Epilogue For 100 Million Unnecessary Returns, Michael J. Graetz

Faculty Scholarship

This is the first step of a new epilogue for my book 100 Million Unnecessary Returns: A Simple, Fair, and Competitive Tax Plan for the United States. In January 2012, the Tax Policy Center (TPC), pursuant to a grant from Pew Charitable Trust, published an article analyzing and estimating the parameters of the tax plan set forth in this book. TPC has now updated its estimates to take into account the January 2013 “fiscal cliff” legislation and other economic changes. Certain details of the plan have also been revised somewhat.

The competitive tax reform plan has five pieces: First, enact …

Het Gebruik Van Risicotaxatie Instrumenten Onder Spv-En (The Use Of Risk Assessment Instruments Among Community Psychiatric Nurses), Sophie De Valk, Corine De Ruiter, Jorge Folino, Matthew Large, Thierry Pham, Kim Reeves, Carolina Condemarin, Louise Nielsen, Martin Rettenberger, Robyn Mei Yee Ho, Verónica Godoy-Cervera, Kimberlie Dean, Maria Francisca Rebocho, Karin Arbach-Lucioni, Martin Grann, Katharina Seewald, Michael W. Doyle, Sarah Desmarais, Richard Van Dorn, Randy Otto, Jay Singh

Faculty Scholarship

In Dutch
Auteur en een groot aantal alumni-collega's van de Universiteit van Maastricht, hebben gekeken welke risicotaxatie-instrumenten SPV-en gebruiken om het risico van recidive in te schatten bij clienten uit de forensische psychiatrie. Met behulp van START kan volgens hen het risico voor anderen, het risico op victimisatie, risico op zelfbeschadigend gedrag, suïcidegevaar, ongeoorloofde afwezigheid, middelenmisbruik en zelfverwaarlozing bij deze forensische groep vastgesteld worden.

In English
The author and colleagues from the University of Maastricht investigated the use of structured risk assessment instruments in forensic psychiatry. Using instruments such as the START may aid in the assessment of violence, victimization, …

Alienability And Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic …

Human Rights Obligations To The Poor, Monica Hakimi

Faculty Scholarship

Poverty unquestionably detracts fromthe human rights mission.Modern human rights law recognizes a broad range of rights – for example, “to life, liberty, and security of person” and to adequate “food, clothing, and medical care.”1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational.What does human rights law actually require of states? And how might its obligations benefit the poor?

Copyright Infringement Markets, Shyamkrishna Balganesh

Faculty Scholarship

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement – which copyright law grants authors in order to render its exclusive rights operational – has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely consider the possibility of an acquisition or investment market emerging for actionable copyright claims and the advantages that such a market might hold for copyright’s goals, objectives, …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

The Failed Promise Of Language Rights: A Critique Of The International Language Rights Regime, Moria Paz

Faculty Scholarship

Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in (i) …

Forest Carbon (Redd+), Repairing International Trust, And Reciprocal Contractual Sovereignty, David Takacs

Faculty Scholarship

No abstract provided.

Ineffective Assistance Of Library: The Failings And The Future Of Prison Law Libraries, Jonathan Abel

Faculty Scholarship

The prison law library has long been a potent symbol of the inmate's right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research …

Over The Borderline-A Review Of Margaret Price's Mad At School: Rhetorics Of Mental Disability And Academic Life, Gregory M. Duhl

Faculty Scholarship

This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide …

Deconstructing Corporate Governance: The Mechanics Of Trusting, René Reich-Graefe

Faculty Scholarship

The phenomenon of trust among firm participants is a much neglected academic inquiry in corporate governance research and the theory of the firm. This Article elaborates on the comparatively small sample of existing legal research on the intersection of trust and corporate governance and tries to interrupt the selective (in-)attention given to the philosophical, psychological, political, sociological, economic, and legal phenomenon that is our individual as well as collective, everyday trust (or distrust) in the functionality and explainability of the world tomorrow in accordance with our preferences of today and our experiences of the past. Trust—as a phenomenon—is a concrete …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …

A Tax Response To The Executive Pay Problem, David I. Walker

Faculty Scholarship

Many observers believe that that the public company executive labor market is deficient and results in systematically excessive compensation. This Article accepts that premise and considers potential regulatory responses. Specifically, this Article proposes and analyzes a two-pronged tax response to the problem of excessive executive pay – the imposition of a surtax on executive pay in excess of a threshold combined with investor tax relief. These two prongs respond to the chief concerns raised by excessive executive pay. The imposition of a surtax would reduce the after-tax income of executives, which would directly address the unfairness of excessive pay and …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Faculty Scholarship

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane

Faculty Scholarship

This is a brief review of The Verdict of Battle: The Law of Victory and the Making of Modern War (2012), by James Q. Whitman, a remarkably erudite and original contribution to scholarship on military history and the law of war. It sketches the work’s compelling historical arguments and then critiques its (comparatively modest) polemical dimensions and normative conclusions.

Dissemination Must Serve Authors: How The U.S. Supreme Court Erred, Wendy J. Gordon

Faculty Scholarship

The US Congress has enacted expansions of copyright which arguably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as unconstitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote nonauthorial interests; apparently, Congress could enact provisions aiming to support noncreative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily …