Law Commons^™

A Closing Keynote: A Comment On Mass Incarceration In The United States, David Rudovsky

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No abstract provided.

Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan

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In January 2008, at the Association of American Law Schools' annual meeting, the Jurisprudence Section conducted a panel on "The Margins of Legal Personhood." The goal of this panel was to draw (or sever) connections between and among different "marginal" entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must …

Governance In The Ruins, David A. Skeel Jr.

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What gets an economy up and running after a catastrophic war or a period of oppressive rule? While there are nearly as many answers to these questions as experts, one of the most prominent for the past century has been law. Nearly every page of Law and Capitalism, a remarkable new book by Curtis Milhaupt and Katharina Pistor, stands in implicit or explicit dissent from the prevailing view. Milhaupt and Pistor’s countermodel begins a matrix consisting of two axes. The first contrasts a purely protective regime on one end, with a pervasively “coordinative” approach on the other. The second axis …

Guest Workers And Justice In A Second-Best World, Howard F. Chang

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This essay offers a defense of guest-worker programs and a critique of the objections raised by Michael Walzer and by other critics of such programs. Although critics commonly complain that guest workers are vulnerable to exploitation by employers, we can design guest-worker programs that minimize the risk of such exploitation. Ready access for relatively unskilled guest workers to citizenship and to public benefits, however, generates a fiscal burden for the public treasury. A right to equal treatment for aliens yields perverse results unless aliens are also entitled to equal concern when the host country decides whether to admit the alien …

The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang

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In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …

Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small

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No abstract provided.

Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts

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No abstract provided.

A Better Approach For Balancing Authority And Accountability In Shareholder Derivative Litigation, Ann M. Scarlett

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Corporations present an interesting illustration of the authority versus accountability dilemma. Shareholders elect the directors of the corporation and the law vests those directors with almost unlimited authority to manage the corporation. Yet, shareholders have few effective means for holding directors accountable for their decisions other than through shareholder derivative litigation. In such litigation, the business judgment rule serves as the mechanism by which courts attempt to balance directors' authority to make decisions for the corporation against shareholders' right to hold directors accountable for those decisions.

As this Article discusses, numerous theories exist as to the proper formulation of the …

The Two Faces Of Justice In The Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining And The Inquisitorial Legacy, Stephen C. Thaman

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This essay focuses on adversary procedure, plea-bargaining, and jury trial in the 1991 Concept of Judicial Reform of the Russian Republic. It discusses the impact of these reforms and assesses whether they have led to an improvement in the quality of evidence presented to the trier of fact, liberation of the trial and appellate judges from the juggernaut of hierarchical Soviet ‘crime control’ policies, and the development of a culture where acquittals of guilty and innocent will be tolerated when the evidence lacks credibility or is insufficient to constitute proof beyond a reasonable doubt.

Corporate Social Responsibility Of Multinational Enterprises And The International Business Law Curriculum, Constance Z. Wagner

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The author argues for expanded coverage of corporate social responsibility in the U.S. law school curriculum. Corporate social responsibility is of increasing importance for businesses, particularly for those companies that conduct multinational operations. Current national legal and regulatory regimes fail to adequately address the social and environmental issues that arise in business operations. As a result, intergovernmental organizations, non-governmental organizations and businesses have begun to promulgate voluntary codes ofconduct. These codes touch on such subjects as core labor standards, environmental protection, bribery offoreign government officials in international business and human rights. Examples include the Organization for Economic Cooperation and Development …

The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick

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Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting …

Review Of Jonathan Baron, Against Bioethics, Chad Flanders

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This is a short review of a recent book by Jonathan Baron, entitled "Against Bioethics."

What Were Jesus And The Pharisees Talking About When They Talked About Law?, David A. Skeel Jr.

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No abstract provided.

Reconstructing The Race-Sex Analogy, Serena Mayeri

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No abstract provided.

Investment Protection In Extraordinary Times: The Interpretation And Application Of Non-Precluded Measures Provisions In Bilateral Investment Treaties, William W. Burke-White, Andreas Von Staden

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When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have …

Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh

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Responding to Sara K. Stadler Copyright as Trade Regulation:

This Response examines Professor Stadler's argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright's instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such …

Much Ado About Nothing?, Cary Coglianese

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Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time period clearly indicate that paralysis has yet to set in. Administrative procedures are embedded within a complex web of politics, institutions, and organizational behavior. Within that web, procedures are but one factor influencing government agencies.

The Managerial Turn In Environmental Policy, Cary Coglianese

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No abstract provided.

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

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In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …

Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio

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Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change …

Environmental Leadership Programs: Toward An Empirical Assessment Of Their Performance*, Jonathan C. Borck, Cary Coglianese, Jennifer Nash

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Over the past decade, the U.S. Environmental Protection Agency (EPA) and states have developed environmental leadership programs (ELPs), a type of voluntary environmental program designed to recognize facilities with strong environmental performance records and encourage facilities to perform better. Proponents argue that ELPs overcome some of the limitations of traditional environmental regulation by encouraging managers to address the full gamut of environmental problems posed by their facilities, reducing the costs of environmental regulation, easing adversarialism, and fostering positive culture change. Although ELPs have been in place for at least five years at the federal level and in seventeen states, these …

Culpable Acts Of Risk Creation, Larry Alexander, Kimberly Kessler Ferzan

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In our view, an actor deserves punishment when he demonstrates insufficient concern for others, that is, when he engages in a culpable act of risk creation. In this essay, we address how we would rethink the actus reus so as to track the actor's culpability and blameworthiness. Part I sets forth our view that defendants deserve to be punished for culpable acts. Briefly put, an actor is culpable when he risks others' legally protected interests for insufficient reasons. In Part II, we turn to the question of how we would formulate a unit of culpable action. We argue that with …

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

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What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …

Judicial Supremacy, Judicial Activism: Cooper V. Aaron And Parents Involved, Kermit Roosevelt Iii

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No abstract provided.

The Accidental Promise: Remaking The Law Of Misrepresented Intent, Aditi Bagchi

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Insincere Promises advances an economic theory of promissory fraud. Ayres and Klass argue that the doctrine of promissory fraud helps to induce efficient reliance from promisees by penalizing promisors who misrepresent the objective probability of their performance. The authors propose a revised doctrine aimed at inducing optimal reliance with minimal transaction costs. I show that Ayres and Klass have all but abandoned the role of intent in the common law of misrepresented intent. Ayres and Klass are concerned only with making available to promisees accurate information about the probability of performance by promisors. I suggest that whatever the merits of …

Proactive Complementarity: The International Criminal Court And National Courts In The Rome System Of Justice, William W. Burke-White

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When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The …

The Law And Economics Of Environmental Federalism: Europe And The United States Compared, Michael G. Faure, Jason S. Johnston

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This article describes the evolution and key features of the centralized environmental regulatory systems that emerged in the United States and Europe during the latter half of the twentieth century. It applies insights from the positive economic analysis of regulatory centralization in an attempt to explain a striking paradox found in both the European and American centralized environmental regulatory regimes: the fact that in both systems, centralized environmental regulation has been adopted not as a solution for transboundary pollution (interjursidictional externalities), but rather for pollution that is primarily local. The paper develops a positive account that explains the tendency of …

The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang

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Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. Although the economic effects of immigration on native workers and distributive justice among natives are often advanced as reasons to reduce immigration, these concerns do not provide a sound justification for our restrictive immigration laws. Instead, the appropriate response to concerns about the distribution of income among natives is to increase the progressivity of our tax system. Protectionist immigration policies are not only …

The Hanging Chads Of Corporate Voting, Marcel Kahan, Edward B. Rock

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Never has voting been more important in corporate law. With greater activism among shareholders and the shift from plurality to majority voting for directors, the number of close votes is rising. But is the basic technology of corporate voting adequate to the task? In this Article, we first examine the incredibly complicated system of US corporate voting, a complexity that is driven by the underlying custodial ownership structure, by dispersed ownership and large trading volumes, and by the rise in short-selling and derivatives. We identify three ways in which things predictably go wrong: pathologies of complexity; pathologies of ownership; and …

Innovation And The Domain Of Competition Policy, Herbert J. Hovenkamp

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Antitrust policy and the IP laws are both concerned with practices that restrain competition unnecessarily by reducing the size of the public domain beyond that which the Constitution contemplates, or as Congress intended for them to be expanded. In fact, antitrust has a dual role as promoter of competition in IP intensive markets. It regulates both restraints on competition and restraints on innovation. The first line protector of the competitive process in innovation is the IP statutes themselves. The Constitutional Mandate to Congress to create intellectual property regimes in order to promote the Progress of Science and useful Arts is …