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Full-Text Articles in Law

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr. Dec 2012

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr.

Faculty Scholarship

The current law on insider trading is arbitrary and unrationalized in its limited scope in a number of respects. For example, if a thief breaks into your office, opens your files, learns material, nonpublic information, and trades on that information, he has not breached a fiduciary duty and is presumably exempt from insider trading liability. But drawing a line that can convict only the fiduciary and not the thief seems morally incoherent. Nor is it doctrinally necessary. The basic methodology handed down by the Supreme Court in SEC v. Dirks and United States v. O’Hagan dictates (i) that a ...


Thirteenth Amendment Optimism, Jamal Greene Jan 2012

Thirteenth Amendment Optimism, Jamal Greene

Faculty Scholarship

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This article examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adoption by courts. I argue that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process ...


Federal White Collar Sentencing In The United States – A Work In Progress, Daniel C. Richman Jan 2012

Federal White Collar Sentencing In The United States – A Work In Progress, Daniel C. Richman

Faculty Scholarship

Between 1980 and today, the US federal system has struggled to deal with the challenges of sentencing the relatively small number of defendants I shall loosely call “high-end” white collar offenders. After briefly sketching out this story, I explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. While the precise nature of these institutional and procedural structures is jurisdiction specific, I hope to highlight the need to consider such structures when devising an optimal (or, even second-best) sentencing regime.


Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen Jan 2012

Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen

Faculty Scholarship

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress’s faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree ...


Where Is The "Quality Movement" In Law Practice?, William H. Simon Jan 2012

Where Is The "Quality Movement" In Law Practice?, William H. Simon

Faculty Scholarship

The "Quality Movement" that originated in industrial production and has since influenced the professions prescribes standardized work, root cause analysis of errors, peer review, and performance measurement. While these reforms have transformed medicine and some other professions, their influence has lagged in the legal profession. This Essay reviews the limited progress of the reforms in law and assesses the cultural, institutional, and doctrinal obstacles they face.


Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew C. Waxman Jan 2012

Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Lethal autonomous machines will inevitably enter the future battlefield – but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect one’s own personnel and civilian persons and property will demand continuing research, development, and ...


Disabling Attitudes: U.S. Disability Law And The Ada Amendments Act, Elizabeth F. Emens Jan 2012

Disabling Attitudes: U.S. Disability Law And The Ada Amendments Act, Elizabeth F. Emens

Faculty Scholarship

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ...


Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik Jan 2012

Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).


Fourteenth Amendment Originalism, Jamal Greene Jan 2012

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments ...


What The New Deal Settled, Jamal Greene Jan 2012

What The New Deal Settled, Jamal Greene

Faculty Scholarship

This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from ...


Death In Our Life, Joseph Raz Jan 2012

Death In Our Life, Joseph Raz

Faculty Scholarship

This is the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford on 22-5-12. I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life ...


A Precedent Built On Sand: Norcon V. Niagara Mohawk, Victor P. Goldberg Jan 2012

A Precedent Built On Sand: Norcon V. Niagara Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the ...


Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman Jan 2012

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this article adds depth to existing understanding of ...


Interbank Discipline, Kathryn Judge Jan 2012

Interbank Discipline, Kathryn Judge

Faculty Scholarship

As banking has evolved over the last three decades, banks have become increasingly interconnected. This Article draws attention to an effect of this development that has important policy ramifications yet remains largely unexamined – a dramatic rise in interbank discipline. The Article demonstrates that today’s large, complex banks have financial incentives to monitor risk taking at other banks, the infrastructure, competence, and information to be fairly effective monitors, and mechanisms through which they can respond when a bank changes its risk profile. This suggests that interbank discipline affects bank risk taking and merits more consideration than it has received thus ...


Is There A Reason To Keep Promises?, Joseph Raz Jan 2012

Is There A Reason To Keep Promises?, Joseph Raz

Faculty Scholarship

If promises are binding there must be a reason to do as one promised. The paper is motivated by belief that there is a difficulty in explaining what that reason is. It arises because the reasons that promising creates are content-independent. Similar difficulties arise regarding other content-independent reasons, though their solution need not be the same.

Section One introduces an approach to promises, and outlines an account of them that I have presented before. It forms the backdrop for the ensuing discussion. The problems discussed in the paper arise, albeit in slightly modified ways, for various other accounts as well ...


Law, Economics, And The Burden(S) Of Proof, Eric L. Talley Jan 2012

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic ...


The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav Jan 2012

The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav

Faculty Scholarship

In this memorandum, Professors Coffee and Lahav describe and assess the highlights of class certification rulings from 2005 to 2012, and track trends in approaches to certification.


"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott Jan 2012

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing ...


Reversible Rewards, Omri Ben-Shahar, Anu Bradford Jan 2012

Reversible Rewards, Omri Ben-Shahar, Anu Bradford

Faculty Scholarship

This article offers a new mechanism of private enforcement, combining sanctions and rewards into a scheme of “reversible rewards.” The enforcing party sets up a precommitted fund and offers it as reward to another party to refrain from violation. If the violator turns down the reward, the enforcer can use the money in the fund for one purpose only – to pay for punishment of the violator. The article shows that this scheme doubles the effect of funds invested in enforcement and allows the enforcer to stop violations that would otherwise be too costly to deter. It argues that reversible rewards ...


Adaptive Clinical Teaching, Colleen F. Shanahan, Emily A. Benfer Jan 2012

Adaptive Clinical Teaching, Colleen F. Shanahan, Emily A. Benfer

Faculty Scholarship

Legal education has a clear mission – to develop competent and committed members of the legal profession – but this goal can be an elusive one to meet. This is because legal educators often develop their most effective approaches to teaching through trial and error and instinct. A microcosm of this struggle for effective legal teaching is clinical legal education’s distinct set of commitments, pedagogy and teaching methodologies. Building on the trials, errors, and instincts of clinical teachers, this article offers a more intentional approach for designing, teaching, and supervising in a clinic: “adaptive clinical teaching” (ACT). ACT is a structured ...


Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan Jan 2012

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Faculty Scholarship

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes ...


The Character Of The Governmental Action, Thomas W. Merrill Jan 2012

The Character Of The Governmental Action, Thomas W. Merrill

Faculty Scholarship

Penn Central Transportation Co. v. New York City holds a secure position in the architecture of the regulatory takings doctrine. That doctrine is at bottom a tool for distinguishing between different governmental powers; in particular, between the power of eminent domain and the police power. Because eminent domain requires that compensation be paid, whereas the police power does not, it is necessary to draw a line between these powers. Conceivably we could simply take the legislature at its word as to which power it is exercising. But at least since Pennsylvania Coal Co. v. Mahon, the Supreme Court has insisted ...


Towards A Legal Theory Of Finance, Katharina Pistor Jan 2012

Towards A Legal Theory Of Finance, Katharina Pistor

Faculty Scholarship

This paper develops the building blocks for a legal theory of finance. LTF holds that financial markets are legally constructed and as such occupy an essentially hybrid place between state and market, public and private. At the same time, financial markets exhibit dynamics that frequently put them in direct tension with commitments enshrined in law or contracts. This is the case especially in times of financial crises when the full enforcement of legal commitments would result in the self-destruction of the financial system. This law-finance paradox tends to be resolved by suspending the full force of law where the survival ...


The Future Of European Company Law, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch Jan 2012

The Future Of European Company Law, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the views of the European Company Law Experts (ECLE) on the future of European company law. The paper accompanies the responses of the European Company Law Experts to the European Commission’s Consultation on the future of European Company Law of spring 2012. In the first part of the paper we set out our views on the objectives of European company law and in the following parts we discuss how the European Commission should proceed with rule making in the field of company law.


Fourteenth Amendment Originalism, Jamal Greene Jan 2012

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop ...


What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard Jan 2012

What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard

Faculty Scholarship

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In ...


Fiscal Policy In An Era Of Austerity, David M. Schizer Jan 2012

Fiscal Policy In An Era Of Austerity, David M. Schizer

Faculty Scholarship

We face a time of stagnant economic growth, severe unemployment, massive budget deficits, and an increasingly competitive global economy. These daunting challenges are the legacy of a number of unwise policy decisions in both the public and private sectors. Although the good news is that unsound policies can be changed, the bad news is that no single step will do the trick. It is a challenge to rely on monetary policy when interest rates are near zero. There also is uncertainty – and a heated debate among economists – about the effectiveness of a Keynesian stimulus. One thing we know is that ...


Keynote: The Crisis And Criminal Justice, Bernard Harcourt Jan 2012

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the era ...


"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss Jan 2012

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" addresses the possibility that an agency ...


On Avoiding Avoidance, Agenda Control, And Related Matters, Henry Paul Monaghan Jan 2012

On Avoiding Avoidance, Agenda Control, And Related Matters, Henry Paul Monaghan

Faculty Scholarship

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court's affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, it ...