Law Commons^™

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

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Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Decisional Sequencing, Peter B. Rutledge

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Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters …

The Changing Face Of Money, Christopher M. Bruner

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In this essay I argue that widespread failure to comprehend the intrinsic nature of modern money loomed large in the recent crisis, and that broader comprehension of its meaning is a precondition for effective post-crisis reforms. First, I provide a brief history of money, emphasizing its gradual divergence from inherent value. I then consider the value of today’s dollar in economic, legal and psychological terms, arguing that each perspective conveys a single over-arching lesson—that better comprehending our money requires better comprehending ourselves. The introspection that this exercise demands reveals with unique clarity some of the critical lessons of the crisis …

Reconstructing The Individual Mandate As An Escrow Account, Gregg Polsky

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This short essay in Michigan Law Review First Impressions describes how the individual mandate could be reconstructed as an escrow account. Such a restructuring would ameliorate policy concerns regarding the mandate while still deterring the opportunistic behavior that would otherwise occur as a result of the nondiscrimination rules imposed on insurers.

What I Talk About When I Talk About Health Law, Elizabeth Weeks

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Invited contribution celebrating the 25th Anniversary of the Beazley Institute for Health Law & Policy.

A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials And Bad Taste In Copyright, David E. Shipley

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Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other …

The Structural Causes Of Mortgage Fraud, Jim Smith

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Mortgage fraud, often a violation of federal and state criminal statutes, covers a number of different types of behavior, all of which have the common denominator of conduct that has the intent or effect of impairing the value of residential mortgage loans. Mortgage fraud has become prevalent over the past decade and shows no signs of diminishing despite the collapse of domestic housing markets during the past two years. This paper analyzes the complex relationships between prime mortgage loan markets, subprime markets, and various types of mortgage fraud. This paper concludes that the root causes of mortgage fraud are associated …

From International Law To International Conflicts Of Law: The Fragmentation Of Legitimacy, Harlan G. Cohen

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This short essay, published as part of the proceedings of the 104th Annual Meeting of the American Society of International Law, confronts the problem of fragmentation in international law. Based on a longer paper, it challenges not only fragmentation’s conventional treatment as a technical or doctrinal problem but the very notion that there is a single international law community with a single doctrine of sources. On the contrary, the paper argues, what the problem of fragmentation reveals is that a single international law community is being replaced by separate, overlapping legal communities with significantly different views on law and legitimacy.

Countermeasure Mechanisms In A P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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The detection of deception has been the focus of much research in the past 20 years. Though much controversy has surrounded one deception detection protocol, the “Control Question Test” (NRC 2003, Ben-Shakhar 2002), an alternative test, the Guilty Knowledge Test (GKT), developed by Lykken (1959, 1960), is based on scientific principles and has been well-received in the scientific community. The GKT presents subjects with various stimuli, one of which is a guilty knowledge item (termed the probe, such as the gun used to commit a crime). The other stimuli in the test consist of control items that are of the …

A Mock Terrorism Application Of The P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives …

Paying Women For Their Eggs For Use In Stem Cell Research, Pamela Foohey

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On June 11, 2009, the Empire State Stem Cell Board (“Board”), which administers the $600 million in New York State funds allotted to stem cell research, voted to allocate a portion of those funds to compensate women up to $10,000 for “donating” their eggs for use in stem cell research. The Board's decision makes New York the first state to affirmatively allow state funds to be used to compensate women for providing their eggs for use in stem cell research beyond mere reimbursement of associated medical and other expenses, and, similarly, distinguishes it from most international countries, which either prohibit …

The Ilc And The Reconstruction Of U.S. Banking, Mehrsa Baradaran

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Since the Great Depression, bank regulators in the United States have endeavored to separate banking institutions from commercial firms, believing such separation was necessary for stability and growth. The recent collapse of our financial system indicates that this premise may be false, as Industrial Loan Companies ("ILCs") – the only institutions where commercial firms are permitted to own banks – remain sound. ILCs have persisted throughout U.S. banking history through exceptions and omissions in banking legislation, but the strength and resilience they have exhibited in the current financial collapse are worth investigating and even emulating. This article examines recent controversy …

Arbitrating Disputes Between Companies And Individuals: Lessons From Abroad, Peter B. Rutledge, Anna W. Howard

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Congress is considered changes to the Federal Arbitration Act and the central premise underlying these bills is the idea that the parties to these agreements (typically there is an individual on one side and a company on the other) tend to occupy unequal bargaining positions. The drafters of these bills conclude from this that the individual’s choice to opt into arbitration before a dispute has arisen cannot be considered free and voluntary, and thus, the arbitration agreement should be considered void and unenforceable.

Defenders of these bills claim that the United States, when compared to other nations, stands alone in …

The Art And Craft Of International Environmental Law, Daniel M. Bodansky

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International environmental law is often closer to home than we know, affecting the food we eat, the products we buy, and even the air we breathe. Drawing on more than two decades of experience as a government negotiator, consultant, and academic, Daniel Bodansky brings a real-world perspective on the processes by which international environmental law develops, and influences the behavior of state and non-state actors.

In self-contained chapters that offer a clear guide to a complex field, Bodansky answers fundamental questions about how international environmental law works. What role can law play in addressing global environmental challenges such as climate …

Conflicts And The Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

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Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships. In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives(i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex …

Environmental Law, Travis M. Trimble

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In this survey period, the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit held that the Environmental Protection Agency’s adoption of the “unitary waters” definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency’s rule. In Miccosukee Tribe of Indians of Florida v. United States, the Eleventh

Circuit upheld …