Law Commons^™

Reconsidering International Tax Neutrality, Michael S. Knoll

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For decades, U.S. international tax policy has shifted back and forth between territorial-source-exemption taxation and worldwide-residence-credit taxation. The former is generally associated with capital import neutrality (CIN) and the latter with capital export neutrality (CEN). One reason why national tax policy has shifted back and forth between those benchmarks is because it is widely accepted that a tax system cannot simultaneously satisfy both CEN and CIN unless tax rates on capital are harmonized across jurisdictions. In this essay, I argue that the international tax literature contains two different and conflicting definitions for CIN. Under one definition, which goes back at …

Adoption Of The Responsibility To Protect, William W. Burke-White

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This book chapter traces the legal and political origins of the Responsibility to Protect doctrine from its early origins in the International Commission on Intervention and State Sovereignty through the 2005 World Summit Outcome Document and up to January 2011. The chapter examines the legal meaning of the Responsibility to Protect, the obligations the Responsibility imposes on states and international institutions, and its implications in for the international legal and political systems. The chapter argues that while the Responsibility to Protect has developed with extraordinary speed, it is still a norm in development rather than a binding legal rule. Its …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

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In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Criminalization Tensions: Empirical Desert, Changing Norms, And Rape Reform, Paul H. Robinson

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This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the criminal …

Abnormal Mental State Mitigations Or Murder – The U.S. Perspective, Paul H. Robinson

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This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine of "mental illness negating an …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

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If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

The Model Business Corporation Act At Sixty: Shareholders And Their Influence, Lisa Fairfax

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In the sixty years since the Committee on Corporate Laws (Committee) promulgated the Model Business Corporation Act (MBCA), there have been significant changes in corporate law and corporate governance. One such change has been an increase in shareholder activism aimed at enhancing shareholders’ voting power and influence over corporate affairs. Such increased shareholder activism (along with its potential for increase in shareholder power) has sparked considerable debate. Advocates of increasing shareholder power insist that augmenting shareholders’ voting rights and influence over corporate affairs is vital not only for ensuring board and managerial accountability, but also for curbing fraud and other …

Reconceiving Corporate Personhood, Elizabeth Pollman

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Why is a corporation a “person” for purposes of the Constitution? This old question has become new again with public outrage over Citizens United, the recent campaign finance case which expanded corporate constitutional speech rights. This Article traces the historical and jurisprudential developments of corporate personhood and concludes that the doctrine’s origins had the limited purview of protecting individuals’ property and contract interests. Over time, the Supreme Court expanded the doctrine without a coherent explanation or consistent approach. The Court has relied on the older cases that were decided in different contexts and on various flawed conceptions of the corporation. …

Notice And Patent Remedies, Herbert J. Hovenkamp

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In private enforcement systems such as the one for patents, remedies perform the “public” function of determining the optimal amount of protection and deterrence. If every patent were properly granted and had just the right scope to incentivize innovation, then strict enforcement and harsh penalties for infringement would be a good idea. But in a world where too many patents are granted, their boundaries are often ambiguous and scope excessive, things are not so simple. The expected likelihood and magnitude of the penalty determines the number of infringement suits and the litigation resources that will be poured into them. As …

Coase, Institutionalism, And The Origins Of Law And Economics, Herbert J. Hovenkamp

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Ronald Coase merged two traditions in economics, marginalism and institutionalism. Neoclassical economics in the 1930s was characterized by an abstract conception of marginalism and frictionless resource movement. Marginal analysis did not seek to uncover the source of individual human preference or value, but accepted preference as given. It treated the business firm in the same way, focusing on how firms make market choices, but saying little about their internal workings.

“Institutionalism” historically refers to a group of economists who wrote mainly in the 1920s and 1930s. Their place in economic theory is outside the mainstream, but they have found new …

Deregulation Vs. Reregulation Of Telecommunications: A Clash Of Regulatory Paradigms, Christopher S. Yoo

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For the past several decades, U.S. policymakers and the courts have charged a largely deregulatory course with respect to telecommunications. During the initial stages, these decisionmakers responded to technological improvements by narrowing regulation to cover only those portions of industry that remained natural monopolies and deregulating those portions that became open to competition. Eventually, Congress began regulating individual network components rather than services, mandating that incumbent local telephone companies provide unbundled access to any network element. As these elements became open to competition, the courts prompted the Federal Communications Commission to release almost the entire network from unbundling obligations. The …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

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In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

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No abstract provided.

Introduction To Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp

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This document contains the table of contents, introduction, and a brief description of Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford 2011).

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation Without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of …