Digital Commons Network^™

Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman

Faculty Scholarship

Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Radical Tax Reform, Municipal Finance, And The Conservative Agenda, Eric J. Gouvin

Faculty Scholarship

Proponents of a consumption tax system to replace the federal income tax typically couch their support for radical tax reform in the language of traditional tax policy goals. They claim that their reform plans promote the goals of simplicity, economic efficiency, stability, and equity. This Article examines how well the proposed tax reforms will achieve those goals in the context of their anticipated impact on state and local finance. The effects on state and local governments of a flattened-rate income tax, flat tax, or a broad federal consumption tax could be enormous and devastating. The Article finds that all of …

A New Player In The Boardroom: The Emergence Of The Independent Directors' Counsel, Geoffrey C. Hazard Jr., Edward B. Rock

Faculty Scholarship

No abstract provided.

The Lost History Of Apprendi And The Blakely Petition For Rehearing, Rory K. Little, Teresa Chen

Faculty Scholarship

No abstract provided.

Homesteading Rock: A Defense Of Free Access Under The General Mining Law Of 1872, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

The Mining Law of 1872 is one of the most reviled federal land laws, regularly drawing attacks as anachronistic, corporate welfare, a relic of pioneer days, and a source of major environmental problems. Born out of the experience of the nineteenth century mineral rushes, the Mining Law allows individuals to privatize both the surface estate and the mineral rights to public land containing minerals (with some exceptions) without requiring a significant payment to the public treasury for the land This "giveaway" aspect of the law draws the loudest protests. The authors argue that it is inappropriate to measure the net …

Birth After Death: Perpetuities And The New Reproductive Technologies, Sharona Hoffman, Andrew P. Morriss

Faculty Scholarship

The Rule Against Perpetuities ("Rule" or "RAP") has long terrorized law students and lawyers alike: "no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Despite this deceptively simple formulation, the Rule's complexities have bedeviled generations of property students and practitioners on both sides of the Atlantic. Reformers argue that the Rule's complexity is unnecessary to achieve the Rule's objectives and turns it into merely a malpractice trap.

Despite this "reign of terror," the Rule continues to apply in various forms in most …

Regulating By Litigation: The Epa's Regulation Of Heavy-Duty Diesel Engines, Andrew P. Morriss, Bruce Yandle, Andrew Dorchak

Faculty Scholarship

In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA's choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules.

The Abcs Of Global Governance Of Embryonic Stem Cell Research: Arbitrage, Bioethics And Cloning, George J. Annas

Faculty Scholarship

Symposium: Stem Cell Research and Human Cloning: Where Do We Draw the Line: Symposium Transactions

Thank you for that introduction, which reminds me that I used to do regulatory work for the Commonwealth of Massachusetts, primarily as a member of the Board of Registration in Medicine, and we had real regulations, real law, that could be enforced. What I am going to talk about today is not "fake law," but a kind of law that is often seen as more like ethics-international law. There is really no such thing as global bioethics governance, but I would like to think that …

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analysis Of The Doctrine In Its Current Form, Woodrow Hartzog

Faculty Scholarship

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon

Faculty Scholarship

This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …

American Bioethics And Human Rights: The End Of All Our Exploring, George J. Annas

Faculty Scholarship

In his compelling novel Blindness, José Saramago tells us about victims stricken by a contagious form of blindness who were quarantined and came to see themselves as pigs, dogs, and “lame crabs.” Of course, they were all human beings - although unable to perceive themselves, or others, as members of the human community. The disciplines of bioethics, health law, and human rights are likewise all members of the broad human rights community, although at times none of them may be able to see the homologies, even when responding to a specific health challenge.

The boundaries between bioethics, health law, and …

Trademarks And Consumer Search Costs On The Internet, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …

Where Have The Great Inventers Gone?, James Bessen

Faculty Scholarship

The author expands on the idea that the patent system has been a hinderance to collaborative innovation.

The Software Patent Experiment, Robert M. Hunt, James Bessen

Faculty Scholarship

Over the past two decades, the scope of technologies that can be patented has been expanded to include many items previously thought unsuitable for patenting, for example, computer software. Today, the U.S. Patent and Trademark Office grants 20,000 or more software patents a year. Conventional wisdom holds that extending patent protection to computer programs will stimulate research and development and, thus, increase the rate of innovation. In this article, Bob Hunt and Jim Bessen investigate whether this has, in fact, happened. They describe the spectacular growth in software patenting, who obtains patents, and the relationship between a sharp focus on …

Turning The Endangered Species Act Inside Out, Jud Mathews

Faculty Scholarship

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation …

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the …

Embedded Options In The Case Against Compensation In Contract Law, Robert E. Scott, George G. Triantis

Faculty Scholarship

Although compensation is the governing principle in contract law remedies, it has tenuous historical, economic, and empirical support. A promisor's right to breach and pay damages is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded call options, and that termination fees, including damages, are in essence option …

Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer

Faculty Scholarship

It is well understood that aggressive tax planning with derivatives threatens the U.S. income tax system. The conventional solution to this threat has been consistency, meaning that the same tax treatment should apply to all economically comparable bets, regardless of the form used. Yet familiar political and administrative barriers stand in the way of achieving this lofty goal.

This Article develops a reform agenda to eliminate tax planning without requiring consistency. Policymakers should strive instead for a new goal, which this Article calls "balance": For each risky position, the treatment of gains should match the treatment of losses. For example, …

The Origins Of The American Public Trust Doctrine: What Really Happened In Illinois Central, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The public trust doctrine has always been controversial. The general rule in American law favors ownership of natural resources as private property. The public trust doctrine, a jarring exception of uncertain dimensions, posits that some resources are subject to a perpetual trust that forecloses private exclusion rights. For environmentalists and preservationists who view private ownership as a source of the degradation of our natural and historical resources, the public trust doctrine holds out the hope of salvation through what amounts to a judicially enforced inalienability rule that locks resources into public ownership. For those who view private property as the …

Rethinking Copyright Misuse, Kathryn Judge

Faculty Scholarship

Over the last few decades, copyright has evolved in dramatic and unprecedented ways. At the heart of this evolution lies a series of changes in the statutory scheme that have substantially expanded copyright's scope. There has also been a rise in private ordering as copyright holders increasingly use licenses to govern use of their copyrighted material and thereby supplant the default terms prescribed by the Copyright Act. Mediating and contributing to this evolution has been the judiciary. The judiciary has long played an active role in protecting copyright policy, and the dynamism of the last thirty years has only accentuated …

Partnoy's Complaint: A Response, John C. Coffee Jr.

Faculty Scholarship

My article attempts to strike a balance and find a middle ground between the polar positions of those who favor strict liability (of whom Professor Partnoy is probably the most notable) and recent critics who believe it would produce market failure. Necessarily, those who take a middle position are exposed to fire from both sides. Although I admire Professor Partnoy's originality and incisive style, I do not believe that the market could easily survive his reforms and suspect that he has undervalued the hidden costs of strict liability. Deterrence is needed – but there can be too much of a …

Gatekeeper Failure And Reform: The Challenge Of Fashioning Relevant Reforms, John C. Coffee Jr.

Faculty Scholarship

Securities markets have long employed "gatekeepers" – independent professionals who pledge their reputational capital – to protect the interests of dispersed investors who cannot easily take collective action. The clearest examples of such reputational intermediaries are auditors and securities analysts, who verify or assess corporate disclosures in order to advise investors in different ways. But during the late 1990s, these protections seemingly failed, and a unique concentration of financial scandals followed, all involving the common denominator .of accounting irregularities. What caused this sudden outburst of scandals, involving an apparent epidemic of accounting and related financial irregularities, that broke over the …

Executive Power Essentialism And Foreign Affairs, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Only Yesterday: Reflections On Rulemaking Responses To E-Discovery, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Law School Education In The 21st Century: Adding Information Technology Instruction To The Curriculum, Kenneth J. Hirsh, Wayne V. Miller

Faculty Scholarship

For the past 120 years, legal education in the United States has been fundamentally unchanged, even while the practice of law has been revolutionized by information technology. The ideal of the Socratic Method is still dominant in first year and many upperclass courses. Clinical and practice courses have expanded since the early-1980s; however, although state-of-the-art technology is now commonplace in law offices, most federal courthouses, and some state courtrooms, until now, there has been little effort to contextualize the importance of technology for law students. The authors review the availability of courses covering use of technology in law practice at …

Experimental Simulations And Tort Reform: Avoidance, Error And Overreaching In Sunstein Et Al.’S ‘Punitive Damages’, Neil Vidmar

Faculty Scholarship

This article addresses tort reform claims made in Cass R. Sunstein, et al.'s Punitive Damages: How Juries Decide (2002)and related articles, research that was largely underwritten by the Exxon Corporation. Based upon a series of simulation experiments, those authors have made a general claim that juries are incapable of making coherent judgments about punitive damages. In this article I raise serious methodological problems bearing on the validity of the research, and, therefore, its ability to provide judges and legislators with useful information about juries and punitive damages.

Economic Organization In The Construction Industry: A Case Study Of Collaborative Production Under High Uncertainty, William A. Klein, Mitu Gulati

Faculty Scholarship

No abstract provided.

Fear Assessment: Cost-Benefit Analysis And The Pricing Of Fear And Anxiety, Matthew D. Adler

Faculty Scholarship

Risk assessment is now a common feature of regulatory practice, but fear assessment is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as costs for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so …

In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.