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Articles 61 - 75 of 75
Full-Text Articles in Law
Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak
Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak
Articles
We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …
Cancellation Of Debt And Related Transactions, Douglas A. Kahn, Jeffrey H. Kahn
Cancellation Of Debt And Related Transactions, Douglas A. Kahn, Jeffrey H. Kahn
Articles
If a taxpayer borrows money, the borrowed funds are not included in the taxpayer's gross income. That treatment is proper even though the taxpayer has increased his assets by the amount he borrowed because he also has created a corresponding liability to pay back the loan. The taxpayer's net: wealth has not increased. 'The more difficult and interesting questions arise when the taxpayer fails to repay the loan. At first blush, it would appear that upon cancellation of a loan, the taxpayer should have income for the amount that was cancelled. However, the current tax treatment is not that simple. …
Halliburton Ii: A Loser's History, Adam C. Pritchard
Halliburton Ii: A Loser's History, Adam C. Pritchard
Articles
The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …
The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci
The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci
Articles
This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …
Accountability And Independence In Financial Regulation: Checks And Balances, Public Engagement, And Other Innovations, Michael S. Barr
Accountability And Independence In Financial Regulation: Checks And Balances, Public Engagement, And Other Innovations, Michael S. Barr
Articles
Financial regulation attempts to balance two competing administrative goals. On the one hand, as with much of administrative law, accountability is a core goal. Accountability undergirds the democratic legitimacy of administrative agencies. On the other hand, unlike with much of administrative law, independence plays a critical role.' Independence helps to protect financial regulatory agencies from political interference and-with some important caveats-arguably helps to guard against some forms of industry capture. In addition, with respect to the Federal Reserve (the Fed), independence serves to improve the credibility of the Fed's price stability mandate by insulating its decisionmaking from politics and, in …
The Legacy Of Senator Edmund Muskie, Robert Hirshon
The Legacy Of Senator Edmund Muskie, Robert Hirshon
Articles
I am delighted to be with you this morning. My relationship with Senator Edmund Muskie actually predated my birth. It arose from my grandfather's ownership of a building in Waterville, Maine. On the ground floor was a dry goods and clothing store operated by my grandparents and frequently visited by Jane Gray, the future wife of Edmund Muskie. On one of the upper floors in 'the building was a small office that my grandfather rented to an aspiring young lawyer who had recently graduated from Cornell Law School and had returned to Maine to practice law. That young lawyer was …
Conditional Pricing And Monopolization: A Reflection On The State Of Play, Daniel A. Crane
Conditional Pricing And Monopolization: A Reflection On The State Of Play, Daniel A. Crane
Articles
Conditional pricing practices--including bundled discounting, loyalty rebating, and market share discounts--are not new phenomena in the U.S. market. Their potentially exclusionary consequences were raised in antitrust cases decades ago. But unlike trying or exlcusive dealing--which have a rich hsitory of case law and scholarly converage--conditioanl pricing practices did not emerge as salient to the antitrust community until a little over a decade ago. Two federal appellate decisions in the early 2000s--Concord Boar on market share rebates adn LePage's on bundled discounting--sparked a period of intensive interest and activity on these topics in teh antitrust agencies, courts, bench, and legal …
Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson
Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson
Articles
In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock …
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Articles
In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …
Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Resolution, E. J. Janger, John A.E. Pottow
Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Resolution, E. J. Janger, John A.E. Pottow
Articles
Financial contracts come in many forms and serve many functions in both the financial system and the broader economy. Repos secured by U.S. Treasury securities act as money substitutes and can play an important role as part of the money supply, while similarly structured repos, secured by more volatile collateral, may be used as speculative devices or hedges. Swaps can be used to insure against various types of market risk, from interest rates to oil prices, or they can operate as vehicles for highly leveraged investments. The parties to these instruments are sometimes major financial institutions and, other times, ordinary …
Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein
Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein
Articles
In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. The organizer of the symposium, Professor Anita Bernstein, did not afford an opportunity for Restatement reporters to comment on the articles. The organizer did invite the Director of the American Law Institute, Lance Liebman, to contribute an essay commenting on the symposium as a whole. Liebman’s essay—unintentionally no doubt—misstated the position that we took in formulating the slayer rule for the Restatement (Third) of Property: Wills and Other Donative Transfers. Liebman’s misstatement—that we recommended that the Institute adopt a rule allowing a murderer to inherit …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: United States Objects to Russia’s Continued Violations of Ukraine’s Territorial Sovereignty, Including by Convoys Purporting to Provide Humanitarian Aid • United States and Afghanistan Sign Bilateral Security Agreement • United States Announces “Changes and Confirmations” in Its Interpretation of the UNConvention Against Torture • United States and China Make Joint Announcement to Reduce Greenhouse Gas Emissions, Bolstering Multilateral Climate Change Negotiations • United States Deepens Its Engagement with ISIL Conflict • NATO Affirms that Cyber Attacks May Trigger Collective Defense Obligations
The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green
The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green
Articles
Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …
Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff
Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff
Articles
Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …
It's The Autonomy, Stupid!' A Modest Defense Of Opinion 2/13 On Eu Accession To The Echr, And The Way Forward, Daniel H. Bicket
It's The Autonomy, Stupid!' A Modest Defense Of Opinion 2/13 On Eu Accession To The Echr, And The Way Forward, Daniel H. Bicket
Articles
The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph long Opinion 2/13 on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”