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Articles 1 - 30 of 236
Full-Text Articles in Law
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah
Articles
The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court …
Disparity: The Normative And Empirical Failure Of The Federal Guidelines, Albert Alschuler
Disparity: The Normative And Empirical Failure Of The Federal Guidelines, Albert Alschuler
Articles
No abstract provided.
Correspondence: Testing Minimalism: A Reply, Cass R. Sunstein
Correspondence: Testing Minimalism: A Reply, Cass R. Sunstein
Articles
No abstract provided.
Reforming The Federal Sentencing Guidelines Misguided Approach To Real-Offense Sentencing, David Yellen
Reforming The Federal Sentencing Guidelines Misguided Approach To Real-Offense Sentencing, David Yellen
Articles
No abstract provided.
Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine
Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine
Articles
No abstract provided.
A Government Of Limited Powers, Carl E. Schneider
A Government Of Limited Powers, Carl E. Schneider
Articles
Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Hard Cases And The Politics Of Righteousness, Carl E. Schneider
Articles
The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …
European Communities - Conditions For The Granting Of Tariff Preferences To Developing Countries, Alan O. Sykes, Gene M. Grossman
European Communities - Conditions For The Granting Of Tariff Preferences To Developing Countries, Alan O. Sykes, Gene M. Grossman
Articles
No abstract provided.
European Communities - Anti-Dumping Duties On Imports Of Cotton-Type Bed Linen From India - Recourse To Article 21.5 Of The Dsu By India Paper, Alan O. Sykes, Gene M. Grossman
European Communities - Anti-Dumping Duties On Imports Of Cotton-Type Bed Linen From India - Recourse To Article 21.5 Of The Dsu By India Paper, Alan O. Sykes, Gene M. Grossman
Articles
No abstract provided.
United States - Definitive Safeguard Measures On Imports Of Certain Steel Products, Alan O. Sykes, Gene M. Grossman
United States - Definitive Safeguard Measures On Imports Of Certain Steel Products, Alan O. Sykes, Gene M. Grossman
Articles
No abstract provided.
Revealing Options, Lee Anne Fennell
Revealing Options, Lee Anne Fennell
Articles
Legal scholars are beginning to explore how the options template, borrowed from finance, can be applied to legal problems outside the realm of finance. This Article uses the options framework to add a new, intermediate entitlement form to the property rule/liability rule schema pioneered by Guido Calabresi and Douglas Melamed. Building on a fascinating but underused literature on self-assessed valuation mechanisms, I propose an entitlement form that would require entitlement holders to create options for others (or for their future selves). These "entitlements subject to self-made options," or "ESSMOs," are capable of powerfully and elegantly addressing one of the most …
Solving The Due Process Problem With Military Commissions, Nicholas Stephanopoulos
Solving The Due Process Problem With Military Commissions, Nicholas Stephanopoulos
Articles
No abstract provided.
Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin
Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin
Articles
Guaranteed payments are payments made by a partnership to a partner for services performed in his partnership capacity or for the use of capital to the extent that the amount of the payment is not determined by reference to the partnership's income. In addition, some distributions made by a partnership in liquidation of a partner's interest in the partnership are treated as guaranteed payments. A guaranteed payment constitutes ordinary income to the partner, and the partnership is allowed a deduction for the payment unless it constitutes a capital expenditure. While guaranteed payments typically are made in cash, it is possible …
Stand By Your First Amendment Values - Not Your Ad, Nicholas Stephanopoulos
Stand By Your First Amendment Values - Not Your Ad, Nicholas Stephanopoulos
Articles
No abstract provided.
Preemption Of State Spam Laws By The Federal Can-Spam Act, Roger Ford
Preemption Of State Spam Laws By The Federal Can-Spam Act, Roger Ford
Articles
No abstract provided.
Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith
Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith
Articles
This Article presents a framework for interpreting Congress's September 18, 2001Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism.The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under …
Book Review (Reviewing Paul Brand, Kings, Barons, And Justices: The Making And Enforcement Of Legislation In Thirteenth-Century England (2003)), Richard H. Helmholz
Book Review (Reviewing Paul Brand, Kings, Barons, And Justices: The Making And Enforcement Of Legislation In Thirteenth-Century England (2003)), Richard H. Helmholz
Articles
No abstract provided.
Takings, Commons, And Associations: Why The Telecommunications Act Of 1996 Misfired, Richard A. Epstein
Takings, Commons, And Associations: Why The Telecommunications Act Of 1996 Misfired, Richard A. Epstein
Articles
Joint efforts by two or more parties can be achieved either through voluntary cooperation, through state coercive activity under some version of the takings power, or by the creation of some form of commons. Network industries, such as telecommunications, cannot usually work by the former, and thus require some level of state coercion. The choice of the method of coercion is, however, critical because the use of the eminent domain power does not work well when applied to a high frequency of low level transactions that are difficult to price and monitor. In contrast, the creation of an interconnection obligation, …
Political Trials In Domestic And International Law, Eric A. Posner
Political Trials In Domestic And International Law, Eric A. Posner
Articles
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …
Public Versus Private Enforcement Of International Economic Law: Standing And Remedy, Alan O. Sykes
Public Versus Private Enforcement Of International Economic Law: Standing And Remedy, Alan O. Sykes
Articles
This paper develops a theory of the rules regarding standing and remedy in international trade and investment agreements. Regarding investment agreements, the paper argues that a credibLe government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices is required and that a private right of action for money damages is the best way to make such a commitment. In trade agreements, by contrast, importing nations have commitments that are best viewed as government to government rather than government to firm. The parties to trade agreements can enhance their mutual political welfare by declining to …
The Value Of Institutions And The Values Of Free Speech, Dale Carpenter
The Value Of Institutions And The Values Of Free Speech, Dale Carpenter
Articles
Should the First Amendment pay attention to the setting in which speech occurs, giving more protection to some institutions than to others? The very suggestion is a heresy. The First Amendment, to a degree unknown elsewhere in American law, has been characterized by a certain kind of blindness. It has largely been blind to the popularity of the speech involved, blind to whether the speech is favored or disfavored by the government, and blind to the identity of the speaker. On the other hand, some institutions - the professional media, libraries, and universities, for example - are especially good at …
Public Choice Defended (Reviewing Gerry Mackie, Democracy Defended (2003)), Saul Levmore
Public Choice Defended (Reviewing Gerry Mackie, Democracy Defended (2003)), Saul Levmore
Articles
No abstract provided.
The Expressive Power Of Adjudication, Richard H. Mcadams
The Expressive Power Of Adjudication, Richard H. Mcadams
Articles
This article provides a causal explanation of adjudicative compliance that is distinct from both the court's threat of sanctions and its institutional legitimacy. The new mechanism for compliance is the power of adjudicative expression. The theory of "expressive adjudication" arises from a previously neglected synergy among three expressive concepts in game theory -correlated equilibria, focal points, and signals. The article identifies the circumstances in which adjudicative expression can, by itself, influence the behavior of existing disputants and of future potential disputants. In each case, ambiguity in the relevant facts or the concepts underlying intentional and spontaneous order can cause a …
Reply To Helfer And Slaughter, Eric A. Posner, John C. Yoo
Reply To Helfer And Slaughter, Eric A. Posner, John C. Yoo
Articles
No abstract provided.
Deterring Murder: A Reply Ethics And Empirics Of Capital Punishment, Cass R. Sunstein, Adrian Vermeule
Deterring Murder: A Reply Ethics And Empirics Of Capital Punishment, Cass R. Sunstein, Adrian Vermeule
Articles
No abstract provided.
Group Judgments: Statistical Means, Deliberation, And Information Markets, Cass R. Sunstein
Group Judgments: Statistical Means, Deliberation, And Information Markets, Cass R. Sunstein
Articles
How can groups elicit and aggregate the information held by their individual members? There are three possibilities. Groups might use the statistical mean of individual judgments; they might encourage deliberation; or they might use information markets. In both private and public institutions, deliberation is the standard way of proceeding; but for two reasons, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to …
Precautions Against What - The Availability Heuristic And Cross-Cultural Risk Perception Meador Lecture Series 2004-2005: Risk And The Law, Cass R. Sunstein
Precautions Against What - The Availability Heuristic And Cross-Cultural Risk Perception Meador Lecture Series 2004-2005: Risk And The Law, Cass R. Sunstein
Articles
Because risks are on all sides of social situations, it is not possible to be globally "precautionary." Hence, the Precautionary Principle runs into serious conceptual difficulties; any precautions will themselves create hazards of one kind or another. When the principle gives guidance, it is often because of the availability heuristic, which can make some risks stand out as particularly salient, regardless of their actual magnitude. The same heuristic helps to explain differences across groups, cultures, and even nations in the perception of risks, especially when linked with such social processes as cascades and group polarization. One difficulty is that what …
Substantive Consolidation Today, Douglas G. Baird
Substantive Consolidation Today, Douglas G. Baird
Articles
In large corporate reorganizations, bankruptcy judges often confirm plans of reorganization that call for "substantive consolidation" of the different corporate entities comprising the corporate group. Substantive consolidation allows the general creditors of the various entities to share in a common pool of assets; it often simplifies a reorganization and wins broad support among the creditors. Nevertheless, a statutory basis for the doctrine is hard to find, and the lower court practice is often at odds with the doctrine as spelled out in appellate court opinions. The emerging debate over the proper scope of substantive consolidation shows how much bankruptcy law …
Justified Monopolies: Regulating Pharmaceuticals And Telecommunications, Richard A. Epstein
Justified Monopolies: Regulating Pharmaceuticals And Telecommunications, Richard A. Epstein
Articles
No abstract provided.
Of Citizens And Persons: Reconstructing The Privileges Or Immunities Clause Of The Fourteenth Amendment, Richard A. Epstein
Of Citizens And Persons: Reconstructing The Privileges Or Immunities Clause Of The Fourteenth Amendment, Richard A. Epstein
Articles
No abstract provided.