Law Commons^™

To What Extent Does Wealth Maximization Benefit Farmed Animals? A Law And Economics Approach To A Ban On Gestation Crates In Pig Production, Geoffrey C. Evans

Animal Law Review

A law and economics approach in the current animals-as-property realm could be the most efficient way to gain protections for the billions of farmed animals that need them now. The wealth maximization theory allows for this because it recognizes human valuation of nonhuman interests. However, evidence shows that a market failure exists because of the discord between public will and animal industry practices. Where human valuation of nonhuman interests is underrepresented in the market and, therefore, a market fix is needed through legislation, animal advocates should evaluate the legislation’s economic impacts. In the case of a ban on gestation crates, …

Conditional Love: Incentive Trusts And The Inflexibility Problem, Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Article examines the contemporary phenomenon of incentive trusts: trusts that use money to encourage or discourage certain behaviors. Using evidence from Internet websites, practitioner articles, and newspaper articles, the Article considers the likely provisions that a typical incentive trust might have, and explains how such trusts might lead to a problem of inflexibility when they are not drafted so as to take into account the possibility of changed circumstances. The Article also examines current law regarding trust modification and termination as well as recent reform proposals, and suggests some alternatives that might better take into account the particular characteristics …

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

Scholarly Works

Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Culture In Our Midst, Elaine M. Chiu

Faculty Publications

Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and …

Culture As Justification, Not Excuse, Elaine M. Chiu

Faculty Publications

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants …

Behavioral Genetics And Crime, In Context, Owen D. Jones

Vanderbilt Law School Faculty Publications

This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime.

It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.

Law, Ideology, And Strategy In Judicial Decisonmaking: Evidence From Securities Fraud Actions, Michael A. Perino

Faculty Publications

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high-court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some …

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

The New Religious Prisons And Their Retributivist Commitments, Marc O. Degirolami

Faculty Publications

The rise of the religious, or "faith-based," prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are some indications, though preliminary, inconclusive, and hotly contested, that inmates who participate in religious instruction and “programming” recidivate at lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists. …

Formalism In American Contract Law: Classical And Contemporary, Mark L. Movsesian

Faculty Publications

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is …

The Past, Present, And Future Of Violent Crime Federalism, Daniel C. Richman

Faculty Scholarship

The history of the federal involvement in violent crime frequently is told as one of entrepreneurial or opportunistic action by presidential administrations and Congress. The problem with this story, however, is that it treats state and local governments as objects of federal initiatives, not as independent agents. Appreciating that state and local governments courted and benefited from the federal interest is important for understanding the past two decades, but also for understanding the institutional strains created by the absolute priority the feds have given to counterterrorism since September 11, 2001. Intergovernmental relations are at a crossroads. For two decades, the …

Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller argue that bad institutions located in the importer’s country deter international trade because they enable economic predators to steal and extort rents at the importer’s border. We complement this research and show how good institutions located in the exporter’s country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions affect international as well as domestic transaction costs in complex and simple product markets. …

Facilitating Compulsory Licensing Under Trips In Response To The Aids Crisis In Developing Countries, Hans Henrik Lidgard, Jeffery Atik

Hans Henrik Lidgard

The AIDS crisis in the developing world has become a priority for international collaboration. The challenge is to find a balance between the acknowledged need to protect large investments expended in developing new medicines and the goal of providing essential medicines to poor countries. Patent protection must prevent undue infringement yet at the same time allow solutions to humanitarian needs. Is compulsory licensing a way out? TRIPS originally restricted compulsory manufacturing licenses to the country experiencing a public health emergency – which was of little utility to countries lacking manufacturing capacity. The Doha agreement effectively permits twinned compulsory licensing – …

The "Modernisation" Of European Community Competition Law: Achieving Consistency In Enforcement-Part Ii (With P. Cassinis), David J. Gerber

David J. Gerber

No abstract provided.

Principles Of Law, Marios Papaloukas

Marios Papaloukas

This book by Assist. Professor Marios Papaloukas is an introduction to law. It does not however merely present the different legal areas but instead it starts by describing the origins of law from a historical point of view and ends by discovering the legal principles and legal doctrines that lie behind the legal provisions.