Law Commons^™

Contracting In The Contemporary World, Enrico Baffi

enrico baffi

This paper gives an interpretation of many aspects of modern way o stipulate contracts. The leit motive is that many change in the last century has happened because the cost of labor id increased The cost of concert with 50 musician is much more expensive now tan fifty years ago The fact that we use standard form contract, we do not make negotiation , we do not read contracts, all these things seems to depend by the fat the our time has more value now than on hundred years ago. Negotiation of an hour to obtain a reduction of price …

From Coase To Cooter: The Criticisms To Pigou’S Ideas, Enrico Baffi

enrico baffi

The aim of this paper is at discovering the most profound divergences between Coase and Pigou. Coase is well known for his theorem, but in his article ”The Problem of social Cost” he wants to point all the convincing criticisms to Pigou way of reasoning or, it is probably more correct to say, to Pigou’s oral tradition. I have found at least four criticisms. The last one, that states that it is impossible to have a mechanism of internalization of all social costs , is probably the least appealing but that one that has the strongest roots. I have also …

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Beyond Incentives: Making Corporate Whistleblowing Moral In The New Era Of Dodd-Frank Act "Bounty Hunting", Matt A. Vega

Matt A Vega

In this article, I examine the SEC's new whistleblower bounty program authorized by the Dodd-Frank Act. Under the program, which went into effect last year, the SEC is required to pay a bounty to whistleblowers who voluntarily provide the agency with "original information" about a potential securities law violation that leads to a successful SEC or "related" enforcement action and that results in monetary sanctions of sufficient size. When the average SEC settlement is over $18.3 million, whistleblowers can expect the average bounty to be well in the range of $2-5 million.

My contention is that this new program is …

Contracting In The Modern World, Enrico Baffi

enrico baffi

In this paper we try explore some of the basic features of mass contracting. In our opinion, there are basically four characteristics of mass contracting: the reduced negotiations, the dissemination of standard form contracts, the presence of abusive clauses, and the recapitulation of the contract and its execution in a single act of stipulation. a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalised contracts; secondly, this reduction is the consequence of the greater advantage of mass-produced goods compared to personalised goods; ) The …

A Call For Action: An Analysis Of The Impending Regulatory Crisis In The Municipal Securities Market, Philip Grommet

Philip Grommet

This Article warns of an impending regulatory crisis in the municipal securities market. The municipal securities market is an integral tool that allows state and local governments to implement important public interest projects by appealing to retail investors seeking tax-exempt income. Its regulation has garnered little attention – aside from the market’s characterization as “sleepy.” However, the market has grown exponentially and today’s market is increasingly populated with complex financial instruments. Quite simply, its regulation has not kept pace with developments in the market. Municipal securities issuers are not subject to the general registration requirements of the Securities Act of …

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as …

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

Problems Of Perception In The European Court Of Human Rights: A Matter Of Evidence?, Anne Richardson Oakes

Anne Richardson Oakes

The “doctrine of appearances” is now an important element of the jurisprudence of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The court derives support for its interpretations from the traditional precept of the common law that “justice must be seen to be done.” However, the formulations of the European Court are idiosyncratic and apparently driven by an asserted perception of an increased public sensitivity in this area. This paper examines these formulations and considers the extent to which judicial principles of procedural fairness require an empirical connection.

A Paradox In Employment: The Contradiction That Exists Between Immigration Laws And Outsourcing Practices, And Its Impact On The Legal And Illegal Minority Working Classes, Mary O'Sullivan

Mary T O'Sullivan

The drastic distinctions between the United States’ immigration and outsourcing policies have created a system where American companies are able to send unlimited jobs overseas, yet, have very restricted ability to bring workers to domestic offices and factories. Restrictive immigration policies seek to protect American jobs, while liberal outsourcing regulations permit, and encourage, employers to send jobs outside of the United States. As a result, the United States’ outsourcing policy sabotages the purpose of American immigration laws. The uncertainty of the contradiction between immigration and outsourcing policy may be the cause of unusually high unemployment numbers, particularly in the minority …

Early Childhood Education: An Ignored Solution To The Achievment Gap In The United States, Mary T. O'Sullivan

Mary T O'Sullivan

This paper will attempt to analyze the conundrum of how the United States, with its educational goal of decreasing the achievement gap, fails to implement early childhood education, an undisputed determent factor of academic achievement. Through looking at the undisputed contentions in educational policy and the current state of U.S. public school education, this paper will attempt to highlight the disconnect between educational research and implementation, and will outline possible remedies.

Providing A Foundation For Wealth For Wealth Creation And Development In Africa: The Role Of The Rule Of Law, John Mukum Mbaku

JOHN MUKUM MBAKU

PROVIDING A FOUNDATION FOR WEALTH CREATION AND DEVELOPMENT IN AFRICA: THE ROLE OF THE RULE OF LAW JOHN MUKUM MBAKU ABSTRACT This paper examines the struggle in Africa to alleviate and eventually eradicate poverty. It is argued that the most effective way for African countries to deal with poverty is to create wealth. Unfortunately, these countries have not been able to create the wealth that they need to confront poverty. This is due primarily to the fact that since independence, these countries have not been able to undertake democratic institutional reforms to create and adopt institutional arrangements that guarantee and …

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

Response To Hcch Discussion Paper On The Financial Aspects Of Intercountry Adoption, With Special Application To The Situation Of The United States, David M. Smolin

David M. Smolin

The author is an independent expert for the HCCH (Hague Conference on Private International Law) Expert Group on the Financial Aspects of Intercountry Adoption. HCCH created a Discussion Paper and invited the expert group members to write responses. This paper was written in that context; a shorter response paper will be provided to the members of the expert group with a link to this longer paper, which has Special Application to the Situation of the United States. Hence, this paper particularly focuses on the financial aspects of intercountry adoption with particular focus on the situation of the United States.

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Caught In The Cross-Fire: The Psychological And Emotional Impact Of The Individuals With Disabilities Education Act (Idea) Upon Teachers Of Children With Disabilities, A Therapeutic Jurisprudence Analysis, Richard Peterson

Richard Peterson

This paper addresses the psychological and emotional consequences of the Individuals with Disabilities Education Act (IDEA) for public school teachers in the United States as viewed through the lens of Therapeutic Jurisprudence.

Therapeutic Jurisprudence was founded in the 1990s as an interdisciplinary approach to evaluating how law acts as a therapeutic agent upon those who engage in its context. It calls for the study of such consequences to ascertain whether the law’s anti-therapeutic effects can be lessened, and its therapeutic effects increased, without subordinating due process and other values associated with justice. In the context of Special Education Law, for …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

The Racial Injustice Of The War On Drugs: The Sentencing Laws And Police Practices Responsible For The Injustice And A Policy Prescription For A New Way Forward, Brad R. Schlesinger

Brad R Schlesinger

The War on Drugs is a discriminatory policy that results in blacks being overrepresented as those arrested and imprisoned for drug crimes – creating incalculable damages to black communities and families. The culprits are sentencing laws and law enforcement tactics that cannot be considered race-neutral as these policies overwhelmingly affect blacks. While attempts to ameliorate these disparities through sentencing reform has had mild successes, these prescriptions are limited, failing to address the underlying problem: the way the drug war is policed. I contend that legalizing and regulating drugs is necessary to reverse the injustice and blatant discrimination of the drug …

The Future Of Same-Sex Marriage In California, Elizabeth Hollis

Elizabeth Hollis

This article will discuss in detail the issues relating to the rights of same-sex couples wishing to get married in California. First the article examines the history of same-sex marriage in California prior to the most recent Perry v. Brown ruling. The article then focuses on the named plaintiffs in this case, concentrating particularly on their history and how they became involved in the case. Next, the litigation process of Perry v. Brown and the recent decision handed down by Circuit Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit will be reviewed. Finally, the …

The Judgment Of Political Corruption, Harry Adams

Harry Adams

Criminal justice systems sometimes treat public officials who commit political crimes (like bribery) more leniently than private citizens who commit street crimes (like burglary)—even when the harms of the former crimes and criminals are greater than the harms of the latter. The misdeeds of politicians, in fact, are often not labeled as crimes or addressed by the criminal law, but are often addressed by administrative law or administrative bodies run by fellow members of those who've committed such misdeeds. This article examines these possible double standards by providing an analysis of political corruption from a critical legal perspective: in section …

I Wanna Marry You: An Empirical Analysis Of The Distraction And Irrelevancy Of Doma, Deirdre M. Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

The Intersection Of Women's Olympic Sport And Intersex Athletes: A Long And Winding Road, Daniel Gandert

Daniel J Gandert

After a victorious performance in the women’s 800 meter event at the 12th International Association of Athletic Federations (IAAF) World Championships in Berlin, the 18-year old runner Caster Semenya was under suspicion of not being female. She was required to undergo sex determination testing, also known as gender testing. While Semenya’s rivals likely found her case to be unique, athletes with similar conditions are not new to international competition and less-than-sensitive handling of such cases has regrettably been the norm in the past.

In May of 2011, and perhaps spurred by the Semenya case, the IAAF announced new eligibility rules …

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Torture Warrants, Necessity, And Self-Defense, Fritz Allhoff

Fritz Allhoff

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense …

Empirical Objections To Torture: A Critical Reply, Fritz Allhoff

Fritz Allhoff

Those who support torture in ticking-time-bomb cases are often criticized as failing to consider empirical objections to torture; however, torture’s critics often wield this charge uncritically, doing little more than throwing out platitudes without considering the role of those platitudes in the dialectic. I agree with the critics that more empirical engagement is owed than is typically on offer, but deny that such engagement vindicates their position. This essay therefore considers various stock objections to the actual use of torture, while ultimately arguing that those objections fail to undermine the use of torture in exceptional cases. In particular, we will …