Law Commons^™

The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Rationality And Responsibility, Stephen J. Morse

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No abstract provided.

Corporate Law As A Facilitator Of Self Governance, Edward B. Rock, Michael L. Wachter

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No abstract provided.

The Peculiar Role Of The Delaware Courts In The Competition For Corporate Charters, Jill E. Fisch

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From the classic Cary-Winter debate to current legal scholarship, commentators have struggled to explain Delaware's dominance in the market for corporate charters. Although scholars have offered nonsubstantive explanations such as network externalities, interest group dynamics, and Delaware's expert and specialized judiciary, much of the debate focuses on substantive law. This article takes another view. Arguing that a regulator can offer benefits through its lawmaking process, as well as its legal rules, the article suggests a process-oriented analysis of regulatory competition. The article focuses on the unique role of the Delaware judiciary in corporate lawmaking, a role that has received little …

The Five Worst (And Five Best) American Criminal Codes, Paul H. Robinson, Michael T. Cahill, Usman Mohammad

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Each American jurisdiction has a criminal code. Most jurisdictions have substantially restructured and improved their codes since 1962, when the American Law Institute first promulgated its Model Penal Code. Such reform efforts are worthwhile, especially in criminal law, because many advantages flow from the thoughtful codification of criminal law rules. By compiling all criminal rules in a single comprehensive source, codification makes access to these rules easier, increasing the chance that citizens will know what the criminal law commands. A codified rule has the advantage of increased precision, which is likely to increase the uniformity of its application. Uncodified rules--or, …

"Bad For Business": Contextual Analysis, Race Discrimination, And Fast Food, Regina Austin

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No abstract provided.

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

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No abstract provided.

The Possibility Of A Fair Paretian, Howard F. Chang

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No abstract provided.

The Inefficiency Of Mens Rea, Claire Oakes Finkelstein

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No abstract provided.

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

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While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …

When The Rule Swallows The Exception, Claire Oakes Finkelstein

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No abstract provided.

Introduction, Anthony J. Scirica

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No abstract provided.

Privacy-As-Data Control: Conceptual, Practical, And Moral Limits Of The Paradigm, Anita L. Allen

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No abstract provided.

Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch

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No abstract provided.

Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman

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Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …

Creating And Solving The Problem Of Drug Use During Pregnancy, Dorothy E. Roberts

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No abstract provided.

Changing Structure In The Practice Of Law, Geoffrey C. Hazard Jr.

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No abstract provided.

Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz

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No abstract provided.

Toward A Greener Gatt: Environmental Trade Measures And The Shrimp-Turtle Case, Howard F. Chang

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No abstract provided.

Delaware Law As Applied Public Choice Theory: Bill Cary And The Basic Course After Twenty-Five Years, William W. Bratton

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No abstract provided.

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

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Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The ""speech hierarchy"" …

Rethinking Welfare Rights: Reciprocity Norms, Reactive Attitudes, And The Political Economy Of Welfare Reform, Amy L. Wax

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No abstract provided.

Competitor Collaboration After California Dental Association, Herbert Hovenkamp

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No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

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This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …

The Moral Exclusivity Of The New Civil Society, Dorothy E. Roberts

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No abstract provided.

The Futures Problem, Geoffrey C. Hazard Jr.

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Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …

Knowledge About Welfare: Legal Realism And The Separation Of Law And Economics, Herbert J. Hovenkamp

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The welfare state could not function without judgments about how well off its citizens are. For example, governments devise progressive income taxes, which are designed to capture more wealth from the well off and less from the impecunious. These policies presume an ability to take a manageable amount of information about an individual's income or assets and make judgments about her welfare. In fact, people do this all the time, mostly without thinking about the methodological problems involved.

The superficial casualness of our daily observations about welfare belies the state of the economic science of welfare measurement. Economists have attempted …

A Comprehensive Wealth Tax, David Shakow, Reed Shuldiner

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Income, consumption, and wealth are all possible bases for a tax system in the United States. Scholars have specified the structure of income tax and consumption taxes, but no one has attempted to describe in detail a comprehensive wealth tax for the United States. In this paper, we begin to develop such a structure. In particular, we hypothesize that the combination of a flat rate tax on networth and a flat rate tax on earned income along with an appropriate level of exemptions, could be an attractive tax base. In order to explore the structure of a wealth tax, we …

Understanding Lockups: Effects In Bankruptcy And The Market For Corporate Control, Kermit Roosevelt Iii

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The article investigates the effects of lockups, devices used to compensate unsuccessful bidders. Lockups are relevant in contexts in which sales have auction-like characteristics. Bankruptcy and the market for corporate control are two such situations, since the governing legal regimes prevent sales from being swiftly consummated and require sellers to take the most favorable offer that emerges during the waiting period. Existing scholarship has considered lockups in both areas. The analysis of lockups in the market for corporate control is fairly well developed. This article shows that it is importantly incomplete because it fails both to distinguish between ex ante …

The Paradox Of Silence: Some Questions About Silence As Resistance, Dorothy E. Roberts

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No abstract provided.