Law Commons^™

Guarantor Of Last Resort, Kathryn Judge

Faculty Scholarship

The optimal response to a financial crisis entails addressing two, often conflicting, demands: stopping the panic and starting the clock. When short-term depositors flee, banks can be forced to sell assets at fire-sale prices, causing credit to contract and real economic activity to decline. To reduce these adverse spillover effects, policymakers routinely intervene to stop systemic runs. All too often, however, policymakers deploy stopgap measures that allow the underlying problems to fester. To promote long-term economic health, they must also ferret out the underlying problems and allocate the losses that cannot be avoided. A well-designed guarantor of last resort can …

Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson

Faculty Scholarship

Is racial inequality an unwelcome intruder to the new discourse on economic inequality? The present discourse on economic inequality emphasizes decades-long trends that have increased economic inequality, whether as a result of reoccurring features in the structure of capitalist economies or more recent changes in institutional, structural, and economic conditions. Researchers direct us to the rising fortunes of the top earners and asset holders relative to the rest, the declining fortunes of the middle class harmed by stagnating wages, and the declining share of industries (like manufacturing) in the economy. This new economic inequality discourse has preoccupied economists, garnered its …

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's …

Building Labor's Constitution, Kate Andrias

Faculty Scholarship

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of …

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah S. Purdy

Faculty Scholarship

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the …

The Idiosyncrasy Of Patent Examiners: Effects Of Experience And Attrition, Ronald J. Mann

Faculty Scholarship

In recent years, problems with the U.S. patent system have garnered attention from scholars and policymakers of all types. Concerns about the competitiveness of U.S. industry undergird worries that the Great Recession will linger as long as the 1990s downturn in Japan. It is no coincidence that a Congress that has remained at loggerheads on most aspects of economic policy could reach a consensus on the enactment of the Leahy-Smith America Invents Act of 2011, by far the most important statutory reform of U.S. patent law since 1995. Yet, despite Congress's long overdue attention to patent law, it is unlikely …

Law And Regulatory Competition: Can They Co-Exist?, John C. Coffee Jr.

Faculty Scholarship

It is possible to read Stephen Choi's article with admiration and enjoyment – until a critical point is reached at its very end. In an analysis that is balanced, nuanced, and thorough, Professor Choi initially reviews the recent debate over the role of law in fostering the development of financial markets. As others have also concluded, he finds a correlation between quality of law and financial development. At a few points, he may accept too easily the claim that the common law is superior to the civil law in fostering economic growth, without adequately considering the problem of multicollinearity that …

Issue Advocacy: Redrawing The Elections/Politics Line, Richard Briffault

Faculty Scholarship

In the closing weeks of the 1996 election, Montana's airwaves were flooded with the following television advertisement:

Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail's explanation? He 'only slapped her,' but her nose was broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don't approve of his wrongful behavior. Call (406) 443-3620.

The anti-Yellowtail ad, financed by an organization …

The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann

Faculty Scholarship

Within the academic circles of commercial law, secured credit is about as hot as a topic can get. For a good fifteen years, leading scholars have argued contentiously about the most fundamental questions concerning secured credit: not just about the policies that might justify the law's protection of secured creditors, but more fundamentally about the seemingly obvious question of why businesses and their creditors choose to grant collateral to secure their payment obligations. The extensive and inconclusive debate in the academic literature has not, however, undermined the confidence in secured credit exhibited by the law-reform institutions of the profession. Rather, …

Federal Jurisdiction Over Preemption Claims: A Post-Franchise Tax Board Analysis, Ronald J. Mann

Faculty Scholarship

As Congress uses the commerce power to regulate areas of the economy previously controlled by the states, federal statutes conflict with state law with increasing frequency. When such conflicts occur, federal law "preempts" the state law under the supremacy clause of the United States Constitution. Litigants who foresee a preemption issue often seek a declaratory judgment of preemption or nonpreemption in order to clarify their rights and duties. This Note addresses the scope of federal question jurisdiction over declaratory judgment actions in which preemption is the only federal question raised.

The Law And Economics Of Vertical Restrictions: A Relational Perspective, Victor P. Goldberg

Faculty Scholarship

Vertical restrictions between franchisors and their dealers have long been a thorny problem in antitrust law. Richard Posner's characterization of the case law as a "fiasco" and a "doctrinal shambles" is echoed by many other commentators. Perhaps partly because of the intellectual confusion in the area, the Supreme Court recently made an apparently sharp change in direction. In Continental T.V., Inc. v. GTE Sylvania Inc. the Court reversed the decade-old Schwinn per se doctrine, holding that at least some vertical restrictions deserve a rule of reason test. Whether this decision will prove a more durable precedent than Schwinn remains …