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Articles

2009

University of Chicago Law School

Articles 1 - 30 of 85

Full-Text Articles in Law

An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill Jun 2009

An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill

Articles

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no"-breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party-that he is more likely than …


Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat Jun 2009

Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.


Land Virtues, Eduardo Peñalver May 2009

Land Virtues, Eduardo Peñalver

Articles

This Article has two goals. First, I explore some of the descriptive and normative limitations of certain law-and-economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land-its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it-undermines the positive claim that owners will focus on a single value, such as market value, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability …


Foreseeability And Copyright Incentives, Shyam Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyam Balganesh

Articles

Copyright law's principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright's exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system's benefits against its costs. Yet, none of copyright's current doctrines enable courts to circumscribe a creator's entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …


Adjusting Alienability, Lee Anne Fennell Mar 2009

Adjusting Alienability, Lee Anne Fennell

Articles

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected inalienability, despite its inclusion in Calabresi and Melamed's Cathedral. In this Article, I explore inalienability rules as tools for achieving efficiency or other ends when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability …


Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou Jan 2009

Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou

Articles

No abstract provided.


The Pto's Future: Reform Or Abolition?, Jonathan Masur Jan 2009

The Pto's Future: Reform Or Abolition?, Jonathan Masur

Articles

No abstract provided.


Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh Jan 2009

Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh

Articles

No abstract provided.


Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley Jan 2009

Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley

Articles

The Foreign Sovereign Immunities Act (FSIA) provides that foreign states shall be immune from the jurisdiction of U.S. courts unless the suit falls within a specified statutory exception to immunity. There is currently a conflict among the federal circuit courts over whether suits against individual foreign officials are covered by the FSIA. If such suits are not covered by the FSIA, additional questions are raised concerning a possible common law immunity for foreign officials. This Insight describes both the conflict and the additional questions.


A Speech On The Structural Constitution And The Stimulus Program, Richard A. Epstein Jan 2009

A Speech On The Structural Constitution And The Stimulus Program, Richard A. Epstein

Articles

No abstract provided.


Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe Jan 2009

Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe

Articles

No abstract provided.


Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone Jan 2009

Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone

Articles

No abstract provided.


The Modernizing Mission Of Judicial Review, David A. Strauss Jan 2009

The Modernizing Mission Of Judicial Review, David A. Strauss

Articles

Constitutional interpretation, as it is usually conceived, looks to the past-to an old text, to history, to precedent, to tradition-in an effort to limit political majorities But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court's recent work in many disparate areas, including, among others, …


Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler Jan 2009

Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler

Articles

No abstract provided.


Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams Jan 2009

Beyond The Prisoners' Dilemma: Coordination, Game Theory, And Law, Richard H. Mcadams

Articles

No abstract provided.


Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison Jan 2009

Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison

Articles

No abstract provided.


Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa Jan 2009

Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa

Articles

No abstract provided.


What The Law Should (And Should Not) Learn From Child Development Research, Emily Buss Jan 2009

What The Law Should (And Should Not) Learn From Child Development Research, Emily Buss

Articles

No abstract provided.


A Global Architecture For Medical Counter-Measure Preparedness Against Bioviolence, Zachary D. Clopton, Barry Kellman Jan 2009

A Global Architecture For Medical Counter-Measure Preparedness Against Bioviolence, Zachary D. Clopton, Barry Kellman

Articles

No abstract provided.


The Case For Field Preemption Of State Laws In Drug Cases, Richard A. Epstein Jan 2009

The Case For Field Preemption Of State Laws In Drug Cases, Richard A. Epstein

Articles

No abstract provided.


Privacy And The Third Hand: Lessons From The Common Law Of Reasonable Expectations, Richard A. Epstein Jan 2009

Privacy And The Third Hand: Lessons From The Common Law Of Reasonable Expectations, Richard A. Epstein

Articles

No abstract provided.


The Disintegration Of Intellectual Property - A Classical Liberal Response To A Premature Obituary, Richard A. Epstein Jan 2009

The Disintegration Of Intellectual Property - A Classical Liberal Response To A Premature Obituary, Richard A. Epstein

Articles

This Article plays off the title of Thomas Grey's well-known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of the underlying private property institutions. I take the opposite position and treat this supposed disintegration of private property as evidence of its robust nature, not only for land but for all forms of intellectual property. Low transaction costs facilitate the creation of efficient regimes of property rights. I use this framework to critique modern intellectual property rights cases that limit the use of injunctive relief in …


The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Richard A. Epstein, Amanda M. Rose Jan 2009

The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Richard A. Epstein, Amanda M. Rose

Articles

In this Article we argue against imposing any additional burdens on investments by SWFs in the United States; at least at present. In our view, at this point a policy of watchful waiting is preferable to any immediate effort to impose special restrictions on SWFs On the one hand, the nightmare scenarios painted by SWF critics often involve activities that would be caught by existing laws; either as they relate to national security or to various forms of business regulation under the securities and antitrust law. On the other hand, we do not possess perfect foresight and cannot say that …


Foreword: Fault In Contract Law, Omri Ben-Shahar, Ariel Porat Jan 2009

Foreword: Fault In Contract Law, Omri Ben-Shahar, Ariel Porat

Articles

No abstract provided.


Fault In Contract Law, Eric A. Posner Jan 2009

Fault In Contract Law, Eric A. Posner

Articles

A promisor is strictly liable for breaching a contract, according to the standard account. However, a negligence-based system of contract law can be given an economic interpretation, and this Article shows that such a system is in some respects more attractive than the strict-liability system. This may explain why, as a brief discussion of cases shows, negligence ideas continue to play a role in contract decisions.


From Blackstone To Holmes: The Revolt Against Natural Law Historic Proponents And The Critics Of Higher Law, Albert Alschuler Jan 2009

From Blackstone To Holmes: The Revolt Against Natural Law Historic Proponents And The Critics Of Higher Law, Albert Alschuler

Articles

No abstract provided.


The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez Jan 2009

The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez

Articles

The plenary power doctrine sharply limits the judiciary's power to police immigration regulation - a fact that has preoccupied immigration law scholars for decades. But scholars' persistent focus on the distribution of power between the courts and the political branches has obscured a second important separation-of-powers question: how is immigration authority distributed between the political branches themselves? The Court's jurisprudence has shed little light on this question. In this Article, we explore how the allocation of regulatory power between the President and Congress has evolved as a matter of political and constitutional practice. A long-overlooked history hints that the Executive …


The United States, Israel & Unlawful Combatants, Curtis A. Bradley Jan 2009

The United States, Israel & Unlawful Combatants, Curtis A. Bradley

Articles

The Essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. In particular, the essay discusses whether these members can properly be categorized as a type of “combatant” or whether they must instead always be categorized as “civilians.” The proper categorization can have significant implications for the nation’s authority under international law (and potentially also domestic law) to subject members of a terrorist organization to military targeting and detention. The United States and Israel currently have different legal approaches to the question, and the …


A New Proposal For Loan Modifications, Christopher Mayer, Edward Morrison, Tomasz Piskorski Jan 2009

A New Proposal For Loan Modifications, Christopher Mayer, Edward Morrison, Tomasz Piskorski

Articles

No abstract provided.


Climate Change And Discounting The Future: A Guide For The Perplexed, David A. Weisbach, Cass R. Sunstein Jan 2009

Climate Change And Discounting The Future: A Guide For The Perplexed, David A. Weisbach, Cass R. Sunstein

Articles

No abstract provided.