Law Commons^™

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Derivatives And Collateral: Balancing Remedies And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This Article examines whether exempting those transactions from bankruptcy’s automatic stay, including the stay of foreclosure actions against collateral, is necessary or appropriate in order to minimize systemic risk.

Reprofiling Sovereign Debt, Lee C. Buchheit, Mitu Gulati, Ignacio Tirado

Faculty Scholarship

• The IMF staff’s 2013 proposal to reprofile (i.e., stretch out for a short period without haircutting principal or interest) the maturing debt of a country that has lost market access is a sensible policy in cases where the IMF is uncertain whether the country’s debt stock is sustainable.

• The motivation for the policy is to avoid situations, such as occurred during the Eurozone debt crisis, in which Fund resources are used to bail-out commercial creditors in full.

• But a debt reprofiling is a species of debt restructuring and as such is susceptible to holdout creditor behaviour.

• …

Lawfare, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Pharmaceutical Patents And The Human Right To Health The Contested Evolution Of The Transnational Legal Order On Access To Medicines, Laurence R. Helfer

Faculty Scholarship

Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs. This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs—one relating to …

Human Equity? Regulating The New Income Share Agreements, Shu-Yi Oei, Diane Ring

Faculty Scholarship

A controversial new financing phenomenon has recently emerged. New "income share agreements" (''ISAs'') enable an individual to raise funds by pledging a percentage of her future earnings to investors for a certain number of years. These contracts, which have been offered by entities such as Fantex, Upstart, Pave, and Lumni, raise important questions for the legal system: Are they a form of modern-day indentured servitude or an innovative breakthrough in human financing? How should they be treated under the law?

This Article comprehensively addresses the public policy and legal issues raised by ISAs and articulates an analytical approach to evaluating …

The Politics Of Chinese Land: Partial Reform, Vested Interests And Small Property, Shitong Qiao

Faculty Scholarship

This paper investigates the evolution of the Chinese land regime in the past three decades and focus on one question: why has the land use reform succeeded in the urban area, but not in the rural area? Through asking this question, it presents a holistic view of Chinese land reform, rather than the conventional "rural land rights conflict" picture. This paper argues that the so­called rural land problem is the consequence of China's partial land use reform. In 1988, the Chinese government chose to conduct land use reform sequentially: first urban and then rural. It was a pragmatic move because …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

How Local Discrimination Can Promote Global Public Goods, Timothy Meyer

Faculty Scholarship

International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government …

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott

Faculty Scholarship

No abstract provided.

The Failed Reform: Congressional Crackdown On Repeat Chapter 13 Bankruptcy Filers, Sara Sternberg Greene

Faculty Scholarship

After decades of lobbying to “get tough” on bankruptcy repeat filers, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The Bankruptcy Code now requires that the automatic stay, which prevents creditors from pursuing the property of bankruptcy debtors, expires after thirty days for petitioners who file for bankruptcy within one year of a previously failed petition. Debtors can file a motion to extend the stay, but there is a presumption of a bad faith filing, only overcome if a debtor can show there has been a “substantial change in his or her financial or personal …

One Size Does Not Fit All: What Does High Impact Prevention Funding Mean For Community-Based Organizations In The Deep South?, Carolyn Mcallaster, Jerry Fang

Faculty Scholarship

No abstract provided.

Eco-Environmental Risk Management, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Evaluating The 2013 Euro Cac Experiment, Elena Carletti, Paolo Colla, Mitu Gulati

Faculty Scholarship

On January 1, 2013, it became mandatory that every new sovereign bond issued by a member of the European Monetary Union include a new contract clause called a Collective Action Clause or CAC. This, we believe, constituted the biggest one-time change to the terms of sovereign debt contracts in history, impacting a market of many trillions of euros. And it was not just that the change was big in terms of the size of the market it impacted; it was big in terms of its impact on the documentation of each individual Euro area sovereign bond contract. To illustrate, prior …

The Relevance Of Law To Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The literature on sovereign debt treats law as of marginal significance, largely because the doctrine of sovereign immunity leaves creditors few potent legal remedies against sovereign borrowers. Although sovereign debts can indeed by hard to enforce, the goal of this Essay is to demonstrate that law plays a central, and constantly evolving, role in structuring sovereign debt markets. To list just a few examples, legal rules and institutions (i) decide when a borrower is sovereign, (ii) define the consequences of sovereignty by drawing (or refusing to draw) artificial boundaries between the sovereign and other legal entities, (iii) play some role …

In Memoriam: Daniel J. Meltzer, David F. Levi, David J. Barron, Donald B. Verrilli, Elana Kagan, Martha Minow, Richard H. Fallon, Robert S. Taylor, Vicki C. Jackson

Faculty Scholarship

No abstract provided.

Contaminated Confessions Revisited, Brandon L. Garrett

Faculty Scholarship

A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been …

The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never …

Culpability And Modern Crime, Samuel W. Buell

Faculty Scholarship

Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …

Regulatory Exit, J.B. Ruhl, James Salzman

Faculty Scholarship

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental …

Brief Of Professors Peter S. Menell, J. Jonas Anderson, And Arti K. Rai As Amici Curiae In Support Of Neither Party, J. Jonas Anderson, Peter S. Menell, Arti K. Rai

Faculty Scholarship

No abstract provided.

A Closer Look: Deep South Has The Highest Hiv-Related Death Rates In The United States, Susan S. Reif, Donna Safley, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young

Faculty Scholarship

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and …

Keynote Reflections: The Public Governance Duty, Steven L. Schwarcz

Faculty Scholarship

Firms must take ever greater risks to try to innovate and create value in our increasingly competitive and complex global economy. Corporate governance law generally delegates control over excessive risk-taking to the firm’s investors, principally its risk-seeking shareholders. But this does not cover the type of risk-taking that led to the global financial crisis and that is becoming ever more common - risk-taking that could have systemic consequences to the financial system. I argue for a “public governance duty,” requiring managers of systemically important firms to assess the impact of risk-taking on the public as well as on investors, and …

Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry

Faculty Scholarship

No abstract provided.

Federalism As A Constitutional Principle, Ernest A. Young

Faculty Scholarship

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and …

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter …

Against Game Theory, Gale M. Lucas, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

People make choices. Often, the outcome depends on choices other people make. What mental steps do people go through when making such choices? Game theory, the most influential model of choice in economics and the social sciences, offers an answer, one based on games of strategy such as chess and checkers: the chooser considers the choices that others will make and makes a choice that will lead to a better outcome for the chooser, given all those choices by other people. It is universally established in the social sciences that classical game theory (even when heavily modified) is bad at …