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Full-Text Articles in Law
An Information Theory Of Willful Breach, Omri Ben-Shahar, Oren Bar-Gill
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
Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Articles
No abstract provided.
Land Virtues, Eduardo Peñalver
Land Virtues, Eduardo Peñalver
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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
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
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
Canonizing The Civil Rights Revolution: The People And The Poll Tax, Bruce Ackerman, Jennifer Nou
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No abstract provided.
The Pto's Future: Reform Or Abolition?, Jonathan Masur
Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh
Debunking Blackstonian Copyright (Reviewing Neil Weinstock Netanel, Copyright's Paradox (2008)), Shyam Balganesh
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No abstract provided.
Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley
Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley
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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
A Speech On The Structural Constitution And The Stimulus Program, Richard A. Epstein
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No abstract provided.
Great Power Politics And The Structure Of Foreign Relations Law, Daniel Abebe
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
Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone
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No abstract provided.
The Modernizing Mission Of Judicial Review, David A. Strauss
The Modernizing Mission Of Judicial Review, David A. Strauss
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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
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
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
Is The Bankruptcy Code An Adequate Mechanism For Resolving The Distress Of Systemically Important Institutions?, Edward Morrison
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No abstract provided.
Reputation, Information And The Organization Of The Judiciary, Tom Ginsburg, Nuno Garoupa
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
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
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
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
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
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
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
Foreword: Fault In Contract Law, Omri Ben-Shahar, Ariel Porat
Articles
No abstract provided.
Fault In Contract Law, Eric A. Posner
Fault In Contract Law, Eric A. Posner
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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
From Blackstone To Holmes: The Revolt Against Natural Law Historic Proponents And The Critics Of Higher Law, Albert Alschuler
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No abstract provided.
The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez
The President And Immigration Law, Adam B. Cox, Cristina M. Rodriguez
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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
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
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
Climate Change And Discounting The Future: A Guide For The Perplexed, David A. Weisbach, Cass R. Sunstein
Articles
No abstract provided.