Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 75

Full-Text Articles in Law

In The Shadow Of The Dsu: Addressing Specific Trade Concerns In The Wto Sps And Tbt Committees, Henrik Horn, Petros C. Mavroidis, Erik Wijkström Jan 2013

In The Shadow Of The Dsu: Addressing Specific Trade Concerns In The Wto Sps And Tbt Committees, Henrik Horn, Petros C. Mavroidis, Erik Wijkström

Faculty Scholarship

The paper argues that focusing only on disputes formally raised in the WTO Dispute Settlement system underestimates the extent of trade conflict resolution within the WTO. Both the SPS and TBT Committees address a significant number of ‘specific trade concerns’ (STCs) that in the overwhelming majority of cases do not become formal disputes. The STCs address differences between Members concerning the conformity of national measures in the SPS and TBT areas with these agreements. It appears as if Committee work on STCs significantly helps defuse potential trade frictions concerning national policies in the covered areas.


Machine Speech, Tim Wu Jan 2013

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?


Article Iii Double-Dipping: Proposition 8'S Proponents, Blag, And The Government's Interest, Suzanne B. Goldberg Jan 2013

Article Iii Double-Dipping: Proposition 8'S Proponents, Blag, And The Government's Interest, Suzanne B. Goldberg

Faculty Scholarship

Two fundamental standing problems plague Proposition 8’s proponents and the Bipartisan Legal Advisory Group (BLAG) in the marriage cases currently before the U.S. Supreme Court. First is the Article III double-dipping problem, to which this Essay’s title refers. This problem arises because those parties purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws. Yet the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. To permit this Janus-faced commitment to both sides of the cases would ...


Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg Jan 2013

Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg

Faculty Scholarship

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have ...


The Returns To Criminal Capital, Thomas Loughran, Holly Nguyen, Alex R. Piquero, Jeffrey Fagan Jan 2013

The Returns To Criminal Capital, Thomas Loughran, Holly Nguyen, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Human capital theory (Becker 1962; Mincer 1958; Schultz 1960; 1961) posits that individuals can increase their labor market returns through investments in education and training. This concept has been studied extensively across several disciplines. An analog concept of criminal capital, while the focus of speculation and limited empirical study, remains considerably less developed theoretically and methodologically. This paper offers a formal theoretical model of criminal capital indicators and tests for greater illegal wage returns using a sample of serious adolescent offenders, many of whom participate in illegal income-generating activities. Our results reveal that, consistent with human capital theory, there are ...


Assessing The Optimism Of Payday Loan Borrowers, Ronald J. Mann Jan 2013

Assessing The Optimism Of Payday Loan Borrowers, Ronald J. Mann

Faculty Scholarship

This essay compares the results from a survey administered to payday loan borrowers at the time of their loans to subsequent borrowing and repayment behavior. It thus presents the first direct evidence of the accuracy of payday loan borrowers’ understanding of how the product will be used. The data show, among other things, that about 60% of borrowers accurately predict how long it will take them finally to repay their payday loans. The evidence directly contradicts the oft-stated view that substantially all extended use of payday loans is the product of lender misrepresentation or borrower self-deception about how the product ...


Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman Jan 2013

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber-attack (or threat of cyber-attack) give rise to a right of self-defense – including armed self-defense – and when should it? This essay examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber-attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decision-makers will face these issues and predictive judgments about the ...


Irredeemably Inefficient Acts: A Threat To Markets, Firms, And The Fisc, Alex Raskolnikov Jan 2013

Irredeemably Inefficient Acts: A Threat To Markets, Firms, And The Fisc, Alex Raskolnikov

Faculty Scholarship

This Article defines and explores irredeemably inefficient acts – a conceptually distinct and empirically important category of socially undesirable conduct. Though inefficient behavior is, no doubt, pervasive, the standard view holds that inefficient conduct may be converted into efficient behavior by forcing actors to internalize the external harms of their decisions. For some acts, however, such conversion is impossible. These acts are not just inefficient forms of otherwise socially beneficial activities – they are not just contingently inefficient. Rather, they are inefficient at their core; they reduce social welfare no matter what the regulator does. These irredeemably inefficient (or just irredeemable) acts ...


Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman Jan 2013

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful ...


"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg Jan 2013

"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg

Faculty Scholarship

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance ...


On Waldron's Critique Of Raz On Human Rights, Joseph Raz Jan 2013

On Waldron's Critique Of Raz On Human Rights, Joseph Raz

Faculty Scholarship

Prof. Waldron has recently published a paper criticising the views of Rawls and Raz on human rights. It is pointed out that some supposed criticism are nothing more than observations on conditions that any account of rights must meet, and that Waldron objections to Raz are due to misunderstanding his thesis and its theoretical goal. The short comment tries to clarify that goal.


The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt Jan 2013

The Collapse Of The Harm Principle Redux: On Same-Sex Marriage, The Supreme Court's Opinion In United States V. Windsor, John Stuart Mill's Essay On Liberty (1859), And H. L. A. Hart's Modern Harm Principle, Bernard E. Harcourt

Faculty Scholarship

In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central ...


Freedom Of Contracts, Hanoch Dagan, Michael Heller Jan 2013

Freedom Of Contracts, Hanoch Dagan, Michael Heller

Faculty Scholarship

“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, it is ...


Shallow Signals, Bert I. Huang Jan 2013

Shallow Signals, Bert I. Huang

Faculty Scholarship

Whether in dodging taxes, violating copyrights, misstating corporate earnings, or just jaywalking, we often follow the lead of others in our choices to obey or to flout the law. Seeing others act illegally, we gather that a rule is weakly enforced or that its penalty is not serious. But we may be imitating by mistake: what others are doing might not be illegal — for them.

Whenever the law quietly permits some actors to act in a way that is usually forbidden, copycat misconduct may be erroneously inspired by the false appearance that “others are doing it too.” The use of ...


The Systems Fallacy: From Operations Research To Contemporary Cost-Benefit Analysis: The Perils Of Systems Analysis, Past And Present, Bernard E. Harcourt Jan 2013

The Systems Fallacy: From Operations Research To Contemporary Cost-Benefit Analysis: The Perils Of Systems Analysis, Past And Present, Bernard E. Harcourt

Faculty Scholarship

This article analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The article identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative ...


A Legal Theory Of Finance, Katharina Pistor Jan 2013

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 crisis 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 ...


Sultans Of Swing? The Emerging Wto Case Law On Tbt, Carlo M. Cantore, Petros C. Mavroidis Jan 2013

Sultans Of Swing? The Emerging Wto Case Law On Tbt, Carlo M. Cantore, Petros C. Mavroidis

Faculty Scholarship

Following years of silence after EC-Sardines, three cases were adjudicated by Panels under the WTO Agreement on Technical Barriers to Trade (TBT) in 2011: US-Clove Cigarettes, US-Tuna II (Mexico), and US-COOL. These three cases dealt with key provisions of the Agreement, but the Panels adopted irreconcilable approaches. All three decisions were appealed before the Appellate Body (AB), but even the latter failed to apply a coherent methodology to adjudicate similar.

In Section II, we provide a brief account of the facts and the outcomes of the cases, whereas, in Section III we discuss the methodology applied by the WTO judiciary ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2013

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard ...


Tax Advice For The Second Obama Administration, Michael J. Graetz Jan 2013

Tax Advice For The Second Obama Administration, Michael J. Graetz

Faculty Scholarship

Delivered January 18, 2013 as the keynote address at a conference cosponsored by Pepperdine Law School and Tax Analysts.


Updating The Competitive Tax Plan: A New Epilogue For 100 Million Unnecessary Returns, Michael J. Graetz Jan 2013

Updating The Competitive Tax Plan: A New Epilogue For 100 Million Unnecessary Returns, Michael J. Graetz

Faculty Scholarship

This is the first step of a new epilogue for my book 100 Million Unnecessary Returns: A Simple, Fair, and Competitive Tax Plan for the United States. In January 2012, the Tax Policy Center (TPC), pursuant to a grant from Pew Charitable Trust, published an article analyzing and estimating the parameters of the tax plan set forth in this book. TPC has now updated its estimates to take into account the January 2013 “fiscal cliff” legislation and other economic changes. Certain details of the plan have also been revised somewhat.

The competitive tax reform plan has five pieces: First, enact ...


Het Gebruik Van Risicotaxatie Instrumenten Onder Spv-En (The Use Of Risk Assessment Instruments Among Community Psychiatric Nurses), Sophie De Valk, Corine De Ruiter, Jorge Folino, Matthew Large, Thierry Pham, Kim Reeves, Carolina Condemarin, Louise Nielsen, Martin Rettenberger, Robyn Mei Yee Ho, Verónica Godoy-Cervera, Kimberlie Dean, Maria Francisca Rebocho, Karin Arbach-Lucioni, Martin Grann, Katharina Seewald, Michael W. Doyle, Sarah Desmarais, Richard Van Dorn, Randy Otto, Jay Singh Jan 2013

Het Gebruik Van Risicotaxatie Instrumenten Onder Spv-En (The Use Of Risk Assessment Instruments Among Community Psychiatric Nurses), Sophie De Valk, Corine De Ruiter, Jorge Folino, Matthew Large, Thierry Pham, Kim Reeves, Carolina Condemarin, Louise Nielsen, Martin Rettenberger, Robyn Mei Yee Ho, Verónica Godoy-Cervera, Kimberlie Dean, Maria Francisca Rebocho, Karin Arbach-Lucioni, Martin Grann, Katharina Seewald, Michael W. Doyle, Sarah Desmarais, Richard Van Dorn, Randy Otto, Jay Singh

Faculty Scholarship

Dutch Abstract: Auteur en een groot aantal alumni-collega's van de Universiteit van Maastricht, hebben gekeken welke risicotaxatie-instrumenten SPV-en gebruiken om het risico van recidive in te schatten bij clienten uit de forensische psychiatrie. Met behulp van START kan volgens hen het risico voor anderen, het risico op victimisatie, risico op zelfbeschadigend gedrag, suïcidegevaar, ongeoorloofde afwezigheid, middelenmisbruik en zelfverwaarlozing bij deze forensische groep vastgesteld worden.

English Abstract: The author and colleagues from the University of Maastricht investigated the use of structured risk assessment instruments in forensic psychiatry. Using instruments such as the START may aid in the assessment of violence ...


Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in WTO law, and in particular, in WTO dispute settlement. The distinguishing feature of the study is that it seeks to address the relationship between MEAs and WTO law in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO ...


Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily A. Benfer, Colleen F. Shanahan Jan 2013

Educating The Invincibles: Strategies For Teaching The Millennial Generation In Law School, Emily A. Benfer, Colleen F. Shanahan

Faculty Scholarship

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students’ generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial ...


Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information.


Health And Financial Fragility: Evidence From Car Crashes And Consumer Bankruptcy, Edward R. Morrison, Arpit Gupta, Lenora M. Olson, Lawrence Cook, Heather Keenan Jan 2013

Health And Financial Fragility: Evidence From Car Crashes And Consumer Bankruptcy, Edward R. Morrison, Arpit Gupta, Lenora M. Olson, Lawrence Cook, Heather Keenan

Faculty Scholarship

This paper assesses the importance of adverse health shocks as triggers of bankruptcy filings. We view car crashes as a proxy for health shocks and draw on a large sample of police crash reports linked to hospital admission records and bankruptcy case files. We report two findings: (i) there is a strong positive correlation between an individual's pre-shock financial condition and his or her likelihood of suffering a health shock, an example of behavioral consistency; and (ii) after accounting for this simultaneity, we are unable to identify a causal effect of health shocks on bankruptcy filing rates. These findings ...


Making Corporate Governance Codes More Effective: A Response To The European Commission's Action Plan Of December 2012, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Markus Roth, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch Jan 2013

Making Corporate Governance Codes More Effective: A Response To The European Commission's Action Plan Of December 2012, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Markus Roth, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the European Company Law Experts' response to one of the main issues raised in the European Commission’s Action Plan of 12 December 2012, namely how to make corporate governance codes more effective. The concept of “codes’ effectiveness” has two meanings: effectiveness of the comply-explain mechanism (disclosure effectiveness) and level of adoption of the codes’ recommendations themselves (substantive effectiveness). The ECLE believes that it is of crucial importance to keep the advantages of regulation by codes while finding adequate improvements of the quality of the reports and the explanations. The relationship between the content of corporate governance ...


Response To The European Commission's Report On The Application Of The Takeover Bids Directive, 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 2013

Response To The European Commission's Report On The Application Of The Takeover Bids Directive, 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 European Company Law Experts' response to the report of the European Commission of 28 June 2012 on the application of the Takeover Bids Directive of 2004 and the reform initiatives announced. For evaluating these initiatives the rationale of the mandatory bid rule is relevant (exit rationale, control premium rationale and undistorted choice rationale). On this basis the paper discusses each of the concerns raised by the European Commission: 1) The concept of "acting in concert": The ECLE are of the opinion that a uniform concept for the Takeover Bids Directive, the Transparency Directive and the Acquisition ...


The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt Jan 2013

The Influence Of Systems Analysis On Criminal Law And Procedure: A Critique Of A Style Of Judicial Decision-Making, Bernard E. Harcourt

Faculty Scholarship

This draft analyzes the birth and emergence of the idea of the “criminal justice system” in the 1960s and the fundamentally transformative effect that the idea of a “system” has had in the area of criminal law and criminal procedure. The manuscript develops a critique of the systems analytic approach to legal and policy decision making. It then discusses how that critique relates to the broader area of public policy and contemporary cost-benefit analysis.

The draft identifies what it calls “the systems fallacy” or the central problem with approaching policy questions from a systems analytic approach: namely, the hidden normative ...


Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi Jan 2013

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing ...


Law In Finance, Katharina Pistor Jan 2013

Law In Finance, Katharina Pistor

Faculty Scholarship

Law’s relevance to finance is by now well recognized, in no small part due to the literature on "law and finance" (La Porta et al. 1998; La Porta, Lopez-de-Silanes, and Shleifer 2008) celebrated in this journal ten years ago under the heading "the new comparative economics" (Djankov et al. 2003). There will always be some debate as to whether a specific law or regulation distorts or supports markets, but few would argue today that law is irrelevant to financial markets or that they could operate entirely outside it.

This special issue takes the debate about the relation between law ...