Digital Commons Network^™

Equality Opportunity: Marriage Litigation And Iowa's Equal Protection Law, Suzanne B. Goldberg

Faculty Scholarship

Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand. Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding …

The Politics Of The Rule Of Law, Joseph Raz

Faculty Scholarship

This article is about the political significance and the moral justification of the rule of law in one country, i.e., Britain. Its conclusions apply to other countries in proportion to the degree to which their political culture is similar to the British one.

Global Climate Change Offers Hot Career Opportunities, Michael B. Gerrard

Faculty Scholarship

Michael Gerrard, editor of Global Climate Change and U.S. Law, is passionate about global warming and the role lawyers can play in improving the environment. Student Lawyer's Donna Gerson talks to Gerrard about his career path and how law students can make a difference combating climate change.

Foreword, Jagdish N. Bhagwati

Faculty Scholarship

The launch of the Indian Journal of International Economic Law by the students at the National Law School of India University is a milestone. It fills an important lacuna in India's study of WTO law and should begin to provide us with informed perspectives on the evolving WTO jurisprudence excessively dominated by the perceptions and objectives of policymakers in powerful developed countries and by the activism of the gigantic, financially-flush NGOs like Friends of the Earth and Oxfam reflecting the viewpoints of their origin and location.

Contractual Enforcement Institutions And The Structure Of Information, Avery W. Katz

Faculty Scholarship

Many economic writers on contract theory have assumed that legal institutions are simply unable to do the job of enforcement, and have thus attempted to devise arrangements that motivate the parties to keep their commitments even though a government tribunal would be unable to tell whether they had performed. But non-legal enforcement mechanisms operate both as substitutes and complements for legal mechanisms (and as substitutes and complements for each other). This essay sketches how parties should choose among available enforcement mechanisms, based on the costs of information and other transaction costs.

Decline And Fall? The Roberts Court And The Challenges To Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold's soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In …

Are We Over-Lawyering International Affairs, Philip C. Bobbitt, John D. Hutson, John C. Yoo, Philip D. Zelikow, Edwin D. Williamson

Faculty Scholarship

This panel will discuss the role of lawyers — particularly government lawyers — in addressing questions of legal policy. We will discuss fundamental questions such as: Should lawyers decide legal policy? Or, is that best left to the policymakers? Should lawyers give advice as to legal policy, or should they stick to providing answers as to what the law is? How should lawyers respond to what a policymaker thinks is the legal question, but is really a question of legal policy? If lawyers find the law vague or lacking, should they fill in the gaps, advising as to what the …

Making Sense Of Nation-Level Bankruptcy Filing Rates, Ronald J. Mann

Faculty Scholarship

Increased rates of consumer bankruptcy filings are a policy concern around the world. It is not easy, however, to explain the variations in per capita filing rates from country to country. Some of the variation is attributable to different levels of indebtedness. Some is attributable to different cultural attitudes about financial failure. And some is attributable to the accessibility of the legal system as a remedy for irremediable financial distress.

This paper analyzes the differences in nation-level, per capita filing rates. I start with a model that uses economic variables to explain nation-level variations in filing rates. The economic and …

Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage

Faculty Scholarship

In response to a prominent editorial by Dr. Jeffrey M. Drazen, Professor Sage explains how a relational approach has impeded health law's ability to effectively govern the American health care system, arguing that health law has traditionally focused on the physician-patient encounter rather than on achieving collective objectives (which he calls regulatory duties). Professor Sage traces health law's relational emphasis to private and public law, professional ethics and bioethics, budgetary and general politics, and health care consumerism. He concludes that four areas of health policy-conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and …

River Rats, Megal M. Carpenter

Faculty Scholarship

No abstract provided.

The Next Generation Of Mobile Source Regulation, Andrew P. Morriss

Faculty Scholarship

In the U.S. we have reached the point where further reductions in per-mile emissions from individual mobile sources of criteria pollutants will be both tiny and expensive. In addition, as population grows, total mobile source emissions in developed countries are likely to increase as our ability to engineer reductions on a vehicle-by-vehicle basis reaches its technological limit and is overwhelmed by the rising numbers of miles driven. Mobile source emissions world-wide will climb as greater wealth in the developing world fuels the demand for mobility. This article examines the demand for transportation and the regulation of transportation fuels and then …

Bootleggers, Baptists &(And) Televangelists: Regulating Tobacco By Litigation, Bruce Yandle, Joseph A. Rotondi, Andrew P. Morriss, Andrew Dorchak

Faculty Scholarship

The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation.

The Article begins by showing how tobacco regulation through the 1980s fit …

The Unsolvable Dilemma Of A Paretian Policymaker, Giuseppe Dari-Mattiacci, Nuno Garoupa

Faculty Scholarship

In this paper, we argue that social decision-making is subject to a fundamental conflict between consistency and completeness. We show that a consistent welfarist method of policy assessment, that is, one that never violates the Pareto principle, may be incomplete in the sense of being incapable of providing a solution to important social welfare problems.

Why Plea-Bargaining Fails To Achieve Results In So Many Criminal Justice Systems: A New Framework For Assessment, Nuno Garoupa, Frank H. Stephen

Faculty Scholarship

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. In addition to forming an important part of criminal procedure in the United Kingdom, plea-bargaining has been transplanted to several civil law countries such as France and Italy. Informal versions, based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands, and around the world. The Law and Economics literature on plea-bargaining views it as an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Yet the success of …

The Market For Legal Innovation: Law And Economics In Europe And The United States, Nuno Garoupa, Thomas S. Ulen

Faculty Scholarship

There have been a large number of innovations in legal scholarship in the U.S. legal academy over the past twenty-five or so years and very few from legal scholars in other parts of the world. For instance, because both of us work in the area of law and economics, we are both acutely aware of the large differences in the receptivity to law and economics as between the United States and Europe. The U.S. legal academy has generously embraced law and economics (and some other legal innovations), while Europe (and the rest of the world) has not. Why has the …

Patent Judicial Wisdom, Srividhya Ragavan

Faculty Scholarship

This paper discusses the role of the Indian Judiciary vis-A-vis the patent regime, but carefully avoids creating an exhaustive wish list. Instead, this paper uses illustrations from the United States to draw valuable lessons. Importantly, the paper does not advocate that the Indian Judiciary emulate the United States judiciary. In fact, conventional wisdom dictates that copying the policies or precedents of the West does not always work in developing countries given the stark differences in ground realities like poverty, investments, infrastructure, and other such indicators. Instead, the judicial wisdom that characterizes each of the illustrations sets the common thread for …

The Scope Of Criminal Law And Criminal Sanctions: An Economic View And Policy Implications, Roger Bowles, Michael Faure, Nuno Garoupa

Faculty Scholarship

This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and--more broadly--why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of …

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Introduction, Sypmosium Common Law Environmental Protection, Jonathan H. Adler, Andrew P. Morriss

Faculty Scholarship

Is the common law a viable means of addressing environmental problems? The first wave of environmental common law scholarship, together with the law and economics and classical liberal literatures, at least put the issue on the table for discussion. The response from the critics raised some important criticisms, ones that needed to be answered. Whatever the failings of the environmental regulatory state, the common law has failings of its own, including the failure to protect many ecological resources in the period before the enactment of federal environmental law. In some instances administrative regulation may have hampered or "sabotaged" common law …

Measuring Outcomes: Post-Graduation Measures Of Success In The U.S. News & (And) World Report Law School Rankings, Andrew P. Morriss, William D. Henderson

Faculty Scholarship

The U.S. News & World Report annual rankings play a key role in ordering the market for legal education, and, by extension, the market for entry level lawyers. This Article explores the impact and evolution of placement and post-graduation data, which are important input variables that comprise twenty percent of the total rankings methodology. In general, we observe clear evidence that law schools are seeking to maximize each placement and post-graduation input variable. During the 1997 to, 2006 time period, law schools in all four tiers posted large average gains in employment rates upon graduation and nine months, which appear …

The Lexical Heart: A Dictionary, Megan M. Carpenter

Faculty Scholarship

No abstract provided.

A Sociolegal History Of Public Housing Reform In Chicago, Lisa T. Alexander

Faculty Scholarship

This essay summarizes and compares Alexander Polikoff's Waiting for Gautreaux: A Story of Segregation, Housing, and the Black Ghetto and Mary Pattillo's Black on the Block: The Politics of Race and Class in the City to convey the contributions and limitations of each book. Both works provide a rich sociolegal history of public housing reform in Chicago and illustrate the challenges Chicago has faced in implementing recent HOPE VI public housing reforms. I compare Polikoff's forty-year battle to desegregate public housing in Chicago with Pattillo's insightful observations of class dynamics between the new middle-class African-American power brokers of housing reform …

Nota Sobre El Contracte De Col·Laboració Publicoprivada [Notes On The Public-Private Partnership Contract], Vanessa Casado-Pérez

Faculty Scholarship

No abstract provided.

Of Breaches Of The Peace, Home Invasions, And Securities Fraud, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Bluebook At Eighteen: Reflecting And Ratifying Current Trends In Legal Scholarship, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Political Balance Of Power Over The Military: Rethinking The Relationship Between The Armed Forces, The President, And Congress, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The …

The Icj's Uganda Wall: A Barrier To The Principle Of Distinction And An Entry Point For Lawfare, Eric Talbot Jensen

Faculty Scholarship

The intermixing of combatants with civilians while engaging in hostilities violates one of the most fundamental principles of the law of armed conflict: the principle of distinction. This bedrock principle of the law of war requires those involved in conflict to mark themselves so they can be distinguished from those who are not involved in combat. The most common method of compliance is for combatants to wear a uniform. By requiring distinction, both combatants and civilians know who is involved in the combat and who is not. Derogation from the principle of distinction is among the most serious issues facing …

Post-Conflict Reconstruction, Eric Talbot Jensen

Faculty Scholarship

No abstract provided.

Find It Free And Fast On The Net: Strategies For Legal Research On The Web (2007), Michelle Rigual

Faculty Scholarship

This is a guide to researching legal issues on the internet. Basic search topics applicable to any database are discussed as well as specific strategies for finding free or inexpensive legal materials, effectively using new technologies such as blogs, RSS feeds, and podcasts. Additionally, attendees are warned to avoid outdated technologies and sources. Also presented in Albuquerque, New Mexico, December 13, 2007.