Digital Commons Network^™

Regulating Climate: What Role For The Clean Air Act?, James Salzman, Brigham Daniels, Hannah Polikov, Tim Profeta

Faculty Scholarship

While the Obama administration has made climate change a priority and the House of Representatives has passed a bill, it remains uncertain when or if the Senate will act on this issue, much less what final legislation might be signed. Until then, the Clean Air Act (CAA) remains the law of the land. In light of the CAA's central role in addressing climate change over at least the near term and perhaps far longer, on March 26, 2009, a group of the nation’s leading CAA experts gathered at Duke University to focus specifically on how the U.S. Environmental Protection Agency …

Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines---comparative law, conflict of laws, public international law, and European Union law---have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism---the definition of law, the role of the …

You’Ve Come A Long Way, Baby: Two Waves Of Juvenile Justice Reforms As Seen From Jena, Louisiana, Sara Sun Beale

Faculty Scholarship

This article describes the origins and impact of two modern reforms that dramatically rewrote the law governing the prosecution of juvenile offenders: the Warren Court’s due process decisions and the juvenile justice legislation of the 1990s. Beginning with the prosecution of Mychal Bell, who was one of the Jena 6, the article provides a broader historical and analytical framework to assess the procedural protections available to juveniles charged with serious offenses, particularly the adequacy of the remedies to challenge prosecutorial discretion and disparate treatment by the prosecution.

The article first describes the key role race played in the Warren Court’s …

Islands Of Effective International Adjudication: Constructing An Intellectual Property Rule Of Law In The Andean Community, Laurence R. Helfer, Karen J. Alter, M. Florencia Guerzovich

Faculty Scholarship

The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties …

Recognition And Enforcement Of Foreign Judgments, Ralf Michaels

Faculty Scholarship

No abstract provided.

The ‘Principles’ Paradox, Steven L. Schwarcz

Faculty Scholarship

This essay, prepared for a University of Cambridge conference on ‘Principles Versus Rules in Financial Regulation’, posits a new issue in that debate. Although principles-based regulation is thought to more closely achieve normative goals than rules, the extent to which that occurs can depend on the enforcement regime. A person who is subject to unpredictable liability is likely to hew to the most conservative interpretation of the principle, especially where that person would be a potential deep pocket in litigation. This creates a paradox: unless protected by a regime enabling one in good faith to exercise judgment without fear of …

Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

No abstract provided.

Why We Should Ignore The “Octomom”, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

The Antitrust Of Reputation Mechanisms: Institutional Economics And Concerted Refusals To Deal, Barak D. Richman

Faculty Scholarship

An agreement among competitors to refuse to deal with another party is traditionally per se illegal under the antitrust laws. But coordinated refusals to deal are often necessary to punish wrongdoers, and thus to deter undesirable behavior that state-sponsored courts cannot reach. When viewed as a mechanism to govern transactions and induce socially desirable cooperative behavior, coordinated refusals to deal can sustain valuable reputation mechanisms. This paper employs institutional economics to understand the role of coordinated refusals to deal in merchant circles and to evaluate the economic desirability of permitting such coordinated actions among competitors. It concludes that if the …

Keynote Address: Understanding The ‘Subprime’ Financial Crisis, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale

Faculty Scholarship

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there …

Elimination Of The Deduction For Business Entertainment Expenses, Richard L. Schmalbeck, Jay A. Soled

Faculty Scholarship

The proposal is offered as a part of the Shelf Project, a collaboration by tax professionals to develop and perfect proposals to help Congress when it needs to raise revenue. Shelf Project proposals are intended to raise revenue without raising tax rates because the best systems have taxes that are unavoidable to reach the lowest feasible tax rates.

This proposal would deny deductions for all business entertainment expenses. Also, the definition of the term ‘‘entertainment’’ would be narrowed so that expenses that are incurred in a clear business setting and are deeply rooted in producing immediate income or in mining …

Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett

Faculty Scholarship

Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit …

No Future Without (Personal) Forgiveness: Re-Examining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Faculty Scholarship

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Faculty Scholarship

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also …

The Silver Anniversary Of The United States’ Exclusive Economic Zone: Twenty-Five Years Of Ocean Use And Abuse, And The Possibility Of A Blue Water Public Trust Doctrine, Mary Turnipseed, Stephen E. Roady, Raphael Sagarin, Larry B. Crowder

Faculty Scholarship

Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests that the …

Preamble I: Purposes, Legal Nature, And Scope Of The Picc; Applicability By Courts; Use Of The Picc For The Purpose Of Interpretation And Supplementation And As A Model, Ralf Michaels

Faculty Scholarship

Professor Michael's chapter provides commentary on Preamble I of the UNIDROIT Principles of International Commercial Contracts. Areas covered include purposes, legal nature and scope of the PICC; applicability by courts; use of the PICC for the purpose of interpretation and supplementation and as a model.

Mr. Presidential Candidate: Whom Would You Nominate?, Stuart M. Benjamin, Mitu Gulati

Faculty Scholarship

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will negotiate more effectively with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a secretary of state or a Supreme Court justice can be tremendous. Despite the importance of such appointments, we do not expect candidates to compete on naming the better slates of nominees. For the candidates themselves, avoiding competition over nominees in the pre-election context has personal …

Compulsory Licensing Of Patented Pharmaceutical Inventions: Evaluating The Options, Jerome H. Reichman

Faculty Scholarship

In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to esential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends …

Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman

Faculty Scholarship

This article is a later version of the author's presentation at the Eleventh Annual Honorable Helen Wilson Nies Memorial Lecture March 26, 2008. Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a …

After The Revolution – Decline And Return Of U.S. Conflicts Of Laws, Ralf Michaels

Faculty Scholarship

Scholars in the US have become uninterested in conflict of laws, at least in the core issues that spurred the conflict of laws revolution, especially questions of method and areas of tort and contract law. Proposals for a new (third) Restatement have not yet led very far. By contrast, new interest comes from the fringes: special political questions and interdisciplinarity. As to the first, I use the example of same‑sex marriages to discuss the extent to which discussions about politics are inseparably linked with discussions over conflict of laws. Conflict of laws is here not a mere additional field in …

Using Decision Analysis To Improve Malaria Control Policy Making, Jonathan B. Wiener, Randall A. Kramer, Katherine L. Dickinson, Richard M. Anderson, Vance G. Fowler, Marie Lynn Miranda, Clifford M. Mutero, Kathryn A. Saterson

Faculty Scholarship

Malaria and other vector-borne diseases represent a significant and growing burden in many tropical countries. Successfully addressing these threats will require policies that expand access to and use of existing control methods, such as insecticide-treated bed nets (ITNs) and artemesinin combination therapies (ACTs) for malaria, while weighing the costs and benefits of alternative approaches over time. This paper argues that decision analysis provides a valuable framework for formulating such policies and combating the emergence and re-emergence of malaria and other diseases. We outline five challenges that policy makers and practitioners face in the struggle against malaria, and demonstrate how decision …

The United States, Israel, And Unlawful Combatants, Curtis A. Bradley

Faculty Scholarship

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, …

Feel-Good Formalism, Mitu Gulati, Anna Gelpern

Faculty Scholarship

This essay highlights a phenomenon that has no place in the conventional theory of sophisticated business contracts: the term that makes no sense as an enforceable promise, one that defies functional explanation, one that drafters blush to rationalize in retrospect or chalk up to honest mistake. The subset of contract drafters who stop and think about the term before the contract is signed know that it has little enforcement or other instrumental value. Even if a court were to enforce such a term, its interpretation would be extremely hard to predict at signing. Nevertheless, such clauses get included in contracts …

Do We Care Enough About Racial Inequality? Reflections On The River Runs Dry, Guy-Uriel Charles

Faculty Scholarship

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 University of Pennsylvania Law Review 1075 (2009)

Are Judges Overpaid?: A Skeptical Response To The Judicial Salary Debate, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

The public debate over the need to raise judicial salaries has been one-sided. Sentiment appears to be that judges are underpaid. But neither theory nor evidence provides much support for this view. The primary argument being made in favor of a pay increase is that it will raise the quality of judging. Theory suggests that increasing judicial salaries will improve judicial performance only if judges can be sanctioned for performing inadequately or if the appointments process reliably screens out low-ability candidates. However, federal judges and many state judges cannot be sanctioned, and the reliability of screening processes is open to …

The Coroner’S Inquest: Ecuador’S Default And Sovereign Bond Documentation, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

Conventional wisdom is that sovereigns will rarely, if ever, default on their external debts in circumstances where it is clear that they have the capacity to pay. The first line of defense against the errant sovereign is its concern about reputation. It may have to tap the external debt markets again in the future; and there is the fear that the markets will extract revenge. But reputational constraints do not always work because some governments heavily discount future costs in favor of current benefits. When reputational constraints fail, however, a second line of defense is supposed to come into play. …

What Do Federal District Judges Want?: An Analysis Of Publications, Citations, And Reversals, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer …

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …

Mechanism Choice, Jonathan B. Wiener, Barak D. Richman

Faculty Scholarship

This chapter reviews the literature on the selection of regulatory policy instruments, from both normative and positive perspectives. It first reviews the mechanism design literature to identify normative objectives in selecting among the menu or toolbox of policy instruments. The chapter then discusses the public choice and positive political theory literatures and the variety of models developed to attempt to predict the actual selection of alternative policy instruments. It begins with simpler early models focusing on interest group politics and proceeds to more complicated models that incorporate both supply and demand for policy, the role of policy entrepreneurs, behavioral and …