Law Commons^™

Travelers, Reasoned Textualism, And The New Jurisprudence Of Erisa Preemption, Edward A. Zelinsky

Articles

Upon the enactment of the Employee Retirement Income Security Act of 1974 ("ERISA"), few would have predicted that, a generation later, ERISA's provisions preempting state law would be front page news, a central topic of national debate about health care and its regulation. Similarly, few foresaw at the time ERISA was adopted that the United States Supreme Court would have great difficulty construing ERISA's preemption provisions. By the same token, in 1974 the contemporary revival of interest in statutory textualism lay well into the future.

Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.

All Faculty Scholarship

No abstract provided.

The Evolution Of United States Antitrust Law: The Past, Present, And (Possible) Future, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

As the world’s nations rapidly move from systems in which central planning and monopoly are replaced by free markets,2 it becomes increasingly valuable to consider the histories of competition policy experienced in different nations, on a comparative basis.3 In this article, we focus on the history of antitrust in the United States, the first nation to develop and fully-articulate a competition policy, drawing out themes that may be useful to other countries as they contemplate the shape and direction of their own competition regimes. We show that the American competition policy has reflected an underlying stability and bi-partisanship, but that …

The Challenge Of Administration By Regulation: Preliminary Findings Regarding The U.S. Government's Venture Capital Funds, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

This article assesses the ability of elected officials to control public policy as implemented by public/private hybrid organizations, specifically, government venture capital funds. The study reveals greater control over OPIC investment funds than Enterprise Funds despite the existence of more traditional administrative tools of control for Enterprise Funds. This finding suggests that the regulatory infrastructure for hybrid organizations is more determinative of control than the existence (or lack) of traditional administrative control tools. Thus the challenge of hybrid government centers on the development of regulation as a substitute for administration.

Does The "Good Governance Policy" Of The International Financial Institutions Privilege Markets At The Expense Of Democracy?, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Feminist Foundations For The Law Of Business: One Law And Economics Scholar's Survey And (Re)View, Barbara Ann White

All Faculty Scholarship

The purpose of this Essay is to suggest frameworks and modes of inquiry for applying feminist legal analysis to business law and the related theory of law and economics. It does so in two ways. One is to assess works already written by feminist scholars in the business law arena, highlighting how those contributions have begun to pave the way towards enriching the scope of business law analysis. The other is to offer two new roles for feminist jurisprudence. One role is to define just (that is, fair) distributions of rights and the other role is to define social judgments …

Transfer Of Technology In The Contemporary International Order, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Second Generation Of Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, Erin O'Hara O'Connor, William H. Allen

Scholarly Publications

In his 1963 article in the Stanford Law Review, “Choice of Law and the Federal System,” Professor William F. Baxter criticized the choice-of-law approach of the First Restatement of the Conflict of Laws. According to the Restatement, courts should apply the law of the state where the last act or event deemed necessary to create a cause of action occurred. In contrast, Baxter advocated a comparative-impairment approach, whereby judges were obligated to apply the law of the state whose public policy would suffer the greatest impairment if its law was not applied. The authors contend that although Baxter’s approach caries …

The Employment Contract, Ian Ayres, Stewart J. Schwab

Cornell Law Faculty Publications

This article consists of Professors Ian Ayres and Stewart Schwab 's presentation given at the Economic Analysis of State Employment Law Issues Symposium. Following the presentation, audience members and the presenters participated in a discussion concerning employment contracts. The Journal staff and Professors Ayres and Schwab compiled and edited some of these questions and responses.

Transfer Pricing, Anders Leif Allvin

LLM Theses and Essays

Transfer pricing is one of the principal international taxation issues of the 1990s and potentially of future decades as well. For corporate enterprises, it can be difficult enough to do business in just one country, but it gets even more complex when they go international. The growth of multinational enterprises (MNEs) creates complex taxation issues for both the tax administrations as well for the MNE. Transfer pricing concerns allocation of income earned within affiliated corporate groups in different countries, which must satisfy tax authorities that they are not evading taxes through the use of transfer pricing. The main problem with …

Toward A Taxonomy Of Disputes: New Evidence Through The Prism Of The Priest/Klein Model, Peter Siegelman, Joel Waldfogel

Faculty Articles and Papers

The Priest/Klein model predicts both trial rates and plaintiff win rates as functions of three structural parameters: the decision standard, parties' uncertainty in estimating case quality, and the degree of stake asymmetry across parties. Previous tests of the model are unsatisfactory because most have concentrated on its prediction of a 50 percent win rate, which only obtains as a limiting case. We gather independent evidence that describes the model's three parameters and compare it with estimates from a structural model that simultaneously estimates both trial and win rates. The model fits the data for four of our six case types. …

Preserving Competition: Economic Analysis, Legal Standards And Microsoft, Keith N. Hylton, Ronald A. Cass

Faculty Scholarship

In a recent symposium issue of the George Mason Law Review, Steven Salop and R. Craig Romaine use the Microsoft litigation as a focus for discussion of antitrust law. Salop and Romaine argue that each of the allegations against Microsoft could constitute evidence of a design by Microsoft to reduce competition and to preserve or extend monopoly power. They argue as well that the right legal standard to apply in monopolization cases is a "competitive effects" test that balances the benefits and harms of the monopolist's conduct. This article exposes problems with their approach, explains why it departs from current …

The Tentative Case Against Flexibility In Commercial Law, Omri Ben-Shahar

Articles

Well-rooted in modern commercial law is the idea that the law and the obligations that it enforces should reflect the empirical reality of the relationship between the contracting parties. The Uniform Commercial Code ("Code") champions this tradition by viewing the performance practices formed among the parties throughout their interaction as a primary source for interpreting and supplementing their explicit contracts. The generous recognition of waiver and modifications, as well as the binding force the Code accords to course of performance, course of dealings, and customary trade usages, effectively permits unwritten commercial practices to vary and to erode explicit contractual provisions.

The Midas Touch: The Lethal Effect Of Wealth Maximization, Jeanne L. Schroeder

Articles

No abstract provided.

Global Issues In Compensatory Justice: Introduction, Penelope Andrews

Articles & Chapters

No abstract provided.

Economic Theory, Trader Freedom And Consumer Welfare: State Oil Co. V. Khan And The Continuing Incoherence Of Antitrust Doctrine, Alan J. Meese

Faculty Publications

No abstract provided.

Economics V. Equity: Do Market-Based Environmental Reforms Exacerbate Environmental Injustice?, Stephen M. Johnson

Articles

For almost three decades, the federal government and state governments have addressed environmental problems primarily through "command and control" regulation. Under this traditional approach, the federal government establishes uniform national pollution limits ("command") that the federal or state governments impose on individual polluters through a system of permits or other controls. However, as the command and control approach has eliminated many of the most prolific sources of pollution, the incremental cost of cleaning up the remaining pollution has risen dramatically, and command and control regulation has become politically less attractive. In addition, command and control regulation may be too rigid …

African Integration Schemes: A Case Study Of The Southern African Development Community, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

Causes Of Inequality In The International Economic Order: Critical Race Theory And Postcolonial Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

When Y2k Causes "Economic Loss" To "Other Property", Peter A. Alces, Aaron S. Book

Faculty Publications

No abstract provided.

Windfalls, Eric Kades

Faculty Publications

No abstract provided.

The Scope Of Private Securities Litigation: In Search Of Liability Standards For Secondary Defendants, Jill E. Fisch

All Faculty Scholarship

Recent federal court decisions have struggled to apply the Supreme Court's decision in Central Bank v. First Interstate to determine when outside professionals should be held liable as primary violators under section IO(b) of the Securities Exchange Act. In keeping with the Court's current interpretive methodology, Central Bank and its progeny employ a textualist approach. In this Article, Professor Fisch argues that literal textualism is an inappropriate approach for interpreting the federal securities laws generally and misguided in light of legislative developments post-dating the Central Bank decision. Instead, Professor Fisch advocates an approach that weighs Congress 's recent endorsement of …

The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang

All Faculty Scholarship

No abstract provided.

The Market Revolution In Bank And Insurance Firm Governance: Its Logic And Limits, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

The Genius Of The 1898 Bankruptcy Act, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

Discrimination As Accident, Amy L. Wax

All Faculty Scholarship

This Article seeks to examine how the law should respond to unconscious or automatic forms of cognitive bias that are thought to produce less favorable treatment of employees in the workplace because of race or sex ("unconscious disparate treatment"). Assuming that inadvertent bias is a form of workplace "accident," and using familiar principles of accident law and economic analysis, the Article concludes that extending the framework created by existing anti-discrimination laws to cover disparate treatment that stems from unconscious group-based biases is not a good idea because it is unlikely to serve the principal goals of a liability scheme (deterrence, …

How Successful Was The Revision Of Ucc Article 9?: Reflections Of The Reporters, Steven L. Harris, Charles W. Mooney Jr.

All Faculty Scholarship

No abstract provided.

Deadweight Costs And Intrinsic Wrongs Of Nativism: Economics, Freedom, And Legal Suppression Of Spanish, William W. Bratton, Drucilla L. Cornell

All Faculty Scholarship

No abstract provided.

Issue Advocacy: Redrawing The Elections/Politics Line, Richard Briffault

Faculty Scholarship

In the closing weeks of the 1996 election, Montana's airwaves were flooded with the following television advertisement:

Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail's explanation? He 'only slapped her,' but her nose was broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don't approve of his wrongful behavior. Call (406) 443-3620.

The anti-Yellowtail ad, financed by an organization …

Japan's Experience With Deposit Insurance And Failing Banks: Implications For Financial Regulatory Design?, Curtis J. Milhaupt

Faculty Scholarship

This Article examines three decades of Japanese experience with deposit insurance andfailing banks, and analyzes the implications of that experience for bank safety net reform in other countries. To date, the literature and policy debate on deposit insurance have been heavily colored by U.S. banking history and have focused almost exclusively on explicit deposit protection schemes. Analysis of Japan's safety net experience suggests that (a) deposit insurance, for all its flaws, is superior to the real-world alternative-implicit government protection of depositors and discretionary regulatory intervention in bank distress, (b) a well-designed explicit deposit insurance system that includes a credible bank …