Law Commons^™

Taking Outcomes Seriously, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

The goal of economic efficiency is to promote best outcomes by maximizing the satisfaction of people’s preferences. Given the crucial role of outcomes in efficiency analysis, surprisingly little attention has been devoted to the question of what an outcome actually is. Law-and-economics scholars typically disregard this issue, implicitly adopting the narrowest possible definition of outcome, namely end-results in terms of wealth. Furthermore, no attempt has been made to examine the fundamental question of what notion of outcomes individuals actually embrace.

This Article aims to fill this void by presenting an experimental study of perceptions of outcomes, conducted with both laypersons …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

From Desegregation To Overrepresentation: The Unlawful And Damaging Effects Of Nationally Normed Assessments And Missidentification Of Black Students As Disabled, Ashley Heard

Ashley Heard

Segregation in schools today creates a two-tier system wherein minority students often receive a substandard education. Moreover, they are often tested for cognitive deficits and identified for special education services using a nationally normed assessment. The practice of assessing students from substandard schools on a nationally-normed assessment leads to the misidentification and overrepresentation of minority students identified as disabled and provided special education services.

In this article, I argue that rather than utilizing a nationally normed assessment for the purposes of special education identification, school districts should create a normed scale based on district-specific assessment data. Norming at the district …

U.S.Foreign Trade Zones, Tax-Free Trade Zones Of The World, And Their Impact On The U.S. Economy, Susan W. Tiefenbrun

Susan W Tiefenbrun

ABSTRACT

U.S. Foreign Trade Zones, Tax-Free Trade Zones of the World, and Their Impact on the United States Economy , by Susan Tiefenbrun

Free trade zones (FTZs) date back to the time of the Phoenicians; they developed in the l970s and proliferated from 1980 until today. FTZs are duty-free areas where goods may be warehoused, processed, sold, serviced, distributed, showcased, packaged, labeled, sorted, assembled, and/or manufactured as finished goods prior to re-exporting them as duty-exempt finished products. More than one 135 countries operate tax-free trade zones. There are more than 3,500 of these zones and subzones all over the world, …

Legal Barriers To Implementing International Providers Into Medical Provider Networks For Workers' Compensation, Richard Krasner

Richard Krasner

Over the last twenty years, medical costs associated with lost time workers’ compensation claims has risen dramatically, despite efforts to reform the system. Medical tourism, a popular option for many seeking lower cost health care, is one option that has yet to catch on. Issues of quality of health care in other countries is no different for workers’ compensation patients, as it is for health care patients, and with accreditation from the Joint Commission International (JCI), hospitals that cater to medical tourists offer better care at lower cost than most U.S. hospitals offer. Certain procedures, common to workers’ compensation claims, …

Religion And The Equal Protection Clause, Steven G. Calabresi, Abe Salander

Steven G Calabresi

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter …

Prometheus And The Natural Phenomenon Doctrine: Let’S Not Lose Sight Of The Forest For The Trees, Samantak Ghosh

Samantak Ghosh

The Supreme Court’s recent decision on patentable subject matter, Mayo Collaborative Services. v. Prometheus Laboratories, has come in for a lot of criticism from the biotechnology industry. Whenever the Supreme Court renders a judgment that is a significant departure from the past and arguably gets it wrong, the voices questioning the underlying principle behind the decision become stronger. Unfortunately, Prometheus was a poor vehicle for recalibrating a doctrine that has been untouched for the past three decades. However, it is important to dissociate the specific opinion from the principle animating the opinion, the natural phenomenon doctrine. If the natural phenomenon …

What Do Kim Kardashian And Lance Armstrong Have In Common?: Celebrity Complaints In The Classroom, Amy K. Langenfeld

Amy K Langenfeld

Every day brings a report of a celebrity suing or being sued. The complaints initiating these suits are available online within hours. Regardless of the merits or outcomes of these complaints by or against celebrities, celebrity complaints are a rich source of samples for the law school classroom. As supplements to course materials in civil procedure or legal writing, celebrity complaints are likely to generate discussion for several reasons. First, they show a range of strategies and persuasive writing techniques. Second, they engage students because they are real world documents, and because they have a pop culture setting. Third, they …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

The Business Judgment Rule As An Immunity Doctrine, Lori A. Mcmillan

Lori A. McMillan

The business judgment rule is a judicially created doctrine that protects directors from personal civil liability for the decisions they make on behalf of a corporation. In today’s era of corporate scandals, global financial meltdowns, and directorial malfeasance it has become especially important in setting the bar for when directors are appropriately responsible to shareholders for their actions. Traditionally the business judgment rule has been regarded as a standard of liability, although it has never really been explored or enunciated as such. This view determines eligibility for business judgment rule protection of a decision after an examination of certain preconditions. …

Judicial Efficacy – Providing Justice In State Courts In The Midst Of A Budget Crisis, Mark Gould

Mark Gould

No abstract provided.

Use Of Web Resources In Law Articles: A Citation Study, Alireza Isfandyari-Moghaddam

Alireza Isfandyari-Moghaddam

No abstract provided.

Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester S. Chuang

Chester S. Chuang

Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …

Is The Middle East Moving Toward Islamism After The Arab Spring? The Case Study Of The Egyptian Commercial And Financial Laws, Radwa S. Elsaman Ms., Ahmed Eldakak Mr.

Radwa S Elsaman

The parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats, suggesting that they may intend to amend many laws to bring it in compliance with the Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes the Egyptian business and finance laws to examine whether they comply with Islamic law. It then …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

Delayed Justice: A Case Study Of Texaco Arnd The Republic Of Ecuador’S Operations, Harms, And Possible Redress In The Ecuadorian Amazon, Suraj Patel

Suraj Patel

Multinational corporations engaging in natural resource extraction are often enticed by nascent foreign regulatory regimes and private dispute settlement mechanisms intended to induce investment. The result of a complicit government and poor operational practices can be environmental devastation and widespread human rights violations for which there is little redress. This paper analyzes the challenges inherent in using private dispute resolution mechanisms to hold corporations accountable for regulatory violations through the lens of Texaco’s 30-year operations in the Ecuadorian Amazon and the Aguinda v Chevron litigations in New York and subsequently Ecuador. The case represents the one of the most significant …

Forum Shopping And The Cost Of Access To Justice: Cost And Certainty In International Commercial Litigation And Arbitration, Ali Assareh

Ali Assareh

International commercial transactions sometimes give rise to disputes. Resolving these disputes requires access to justice (whether through litigation or arbitration), and access to justice costs money⎯in some cases, enough money to overshadow the substance of the underlying dispute. Knowing this, international commercial parties almost always include a “dispute resolution” clause in their contracts. Yet, despite their prevalence and importance in managing future arbitration and litigation costs, dispute resolution clauses are often poorly negotiated and hastily drafted, perhaps because some factors that affect the cost of resolving future disputes are not known by the parties ex ante. But, while some factors …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Peirce And The Law: A New Hypothesis, Geoffrey Metcalf Turley

Geoffrey Turley

This article suggests that lawmaking should be informed by philosopher Charles Peirce's formulation of the scientific method. It tracks the development of Peirce's method into a specific, three step process: hypothesis, in which we suggest a general rule that would explain an observed phenomenon; deduction, in which we determine what real world consequents we expect to follow if our hypothesis is correct; and induction, in which we conduct experiments to see if those consequents do indeed occur. The article suggests that lawmaking should more strictly apply this method, using the legislature to make statutes that predict how the law should …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …

Dual Real Estate Agents And The Double Duty Of Loyalty, Mary Szto

Mary Szto

Our present housing crisis is related in part to practices of real estate agents. This article addresses the top three issues that cause the most disputes for agents. They are dual agency, disclosure, and breach of fiduciary duty. Despite legislative efforts in the past two decades to clarify and reduce the duties of dual agents, agents and consumers are still confused about agents who represent both sellers and buyers. They owe double, not half the loyalty owed to one principal.

The stakes are high because home ownership is critical to our economic recovery and the chief source of wealth for …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

This article argues that Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. It examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. …