Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 40

Full-Text Articles in Law

Overstating The Satisfaction Of Lawyers, David L. Chambers Aug 2013

Overstating The Satisfaction Of Lawyers, David L. Chambers

Articles

Recent literature commonly reports US lawyers as disheartened and discontented, but more than two dozen statistically based studies report that the great majority of lawyers put themselves on the satisfied side of scales of job satisfaction. The claim of this article is that, in three ways, these statistically based studies convey an overly rosy impression of lawyers’ attitudes: first, that many of those who put themselves above midpoints on satisfaction scales are barely more positive than negative about their careers and often have profound ambivalence about their work; second, that surveys conducted at a single point in time necessarily fail ...


Hydraulic Fracturing: Sources Of Law And Information, Barbara H. Garavaglia Jan 2013

Hydraulic Fracturing: Sources Of Law And Information, Barbara H. Garavaglia

Articles

Hydraulic fracturing—also known as fracking—has become increasingly controversial in the United States over the past several years, especially in states such as Michigan with large shale gas deposits that were previously unextractable. In 2012, a Michigan fracking ban initiative failed to make it onto the November statewide ballot, but citizens groups are presently collecting signatures in an attempt to get the initiative onto the November 2014 ballot as an “initiated state statute.” And, more recently, state auctions of drilling permits have been the scenes of citizen protests driven by concerns about the potential environmental impacts of hydraulic fracturing.


How Insurance Substitutes For Regulation, Omri Ben-Shahar, Kyle D. Logue Jan 2013

How Insurance Substitutes For Regulation, Omri Ben-Shahar, Kyle D. Logue

Articles

Legal regulation of behavior requires information. Acquiring information about the regulated party's conduct, setting benchmarks by which that conduct is measured, and establishing the correct scale of payoffs for violating or following regulation are costly and require expertise and motivation. Thus, economic theories of rulemaking are often based on the relative information advantages that different regulatory bodies have and how that information can be harnessed to enhance incentives and thereby improve welfare. Government regulators, on average, do not have informational advantages. They are not paid for performance and thus may lack adequate incentives. They are not disciplined by market ...


Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand Jan 2013

Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand

Articles

Like firms in the United States, many Canadian firms voluntarily restrict trading by corporate insiders beyond the requirements of insider trading laws (i.e., super-compliance). Thus, we aim to understand the determinants of firms’ private insider trading policies (ITPs), which are quasi-contractual devices. Based on the assumption that firms that face greater costs from insider trading (or greater benefits from restricting insider trading) ought to be more inclined than other firms to adopt more stringent ITPs, we develop several testable hypotheses. We test our hypotheses using data from a sample of firms included in the Toronto Stock Exchange/Standard and ...


The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos Jan 2013

The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos

Articles

This Article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius (NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. Notwithstanding some of the Court’s language, this Article contends that ...


Transactional Drafting: Using Law Firm Marketing Materials As A Research Resource For Teaching Drafting, Edward R. Becker Jan 2013

Transactional Drafting: Using Law Firm Marketing Materials As A Research Resource For Teaching Drafting, Edward R. Becker

Articles

Since I started teaching drafting, I would like to think that I have continued to learn some lessons about teaching both the substance and the skills of transactional drafting. One of those lessons that I am going to be talking about today is one that I stumbled across by happy accident rather than one that I consciously sought. Specifically, I want to talk about and highlight the ways that law students can use law firm marketing materials to increase their understanding of both drafting and lawyering skills in law school and, hopefully, in practice.


Antitrust And The Judicial Virtues, Daniel A. Crane Jan 2013

Antitrust And The Judicial Virtues, Daniel A. Crane

Articles

Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism ...


Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus Jan 2013

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal ...


The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld Jan 2013

The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld

Articles

On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the ...


The President's Enforcement Power, Kate Andrias Jan 2013

The President's Enforcement Power, Kate Andrias

Articles

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque ...


Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi Jan 2013

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal ...


Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr Jan 2013

Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr

Articles

The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes ...


Revisiting 'Truth In Securities Revisited': Abolishing Ipos And Harnessing Private Markets In The Public Good, Adam C. Pritchard Jan 2013

Revisiting 'Truth In Securities Revisited': Abolishing Ipos And Harnessing Private Markets In The Public Good, Adam C. Pritchard

Articles

My thesis is that the transition between private- and public-company status could be less bumpy if we unify the public-private dividing line under the Securities Act and Exchange Act. The insight builds on Cohen's thought experiment where Congress first enacted the Exchange Act. My proposed public-private standard would take the company-registration model to its logical conclusion. The customary path to public-company status is through an IPO, typically with simultaneous listing of the shares on an exchange. There is nothing about public offerings, however, that makes them inherently antecedent to public-company status. What if companies became public, with required periodic ...


Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms, Rebecca S. Eisenberg Jan 2013

Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms, Rebecca S. Eisenberg

Articles

The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions. First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult ...


"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane Jan 2013

"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane

Articles

In U.S. v. Topco Associates, Inc., Justice Thurgood Marshall announced that "[a] ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.", In The Antitrust Constitution, Thomas Nachbar takes seriously the idea that federal antitrust laws serve a constitutional function. He argues that, contrary to common assumptions, the antitrust laws cannot be understood merely as a form of economic utilitarianism. Rather, they serve the additional purpose of preventing "regulatory harm," the assertion of law-like control over the conduct of others outside the sphere of one's own property interests.


Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger Jan 2013

Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger

Articles

For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.


The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer Jan 2013

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

Articles

First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent ...


A Cure Worse Than The Disease?, Ellen D. Katz Jan 2013

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.


The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran Jan 2013

The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran

Articles

The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That ...


Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger Jan 2013

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced ...


Interpersonal Power In The Criminal System, Kimberly A. Thomas Jan 2013

Interpersonal Power In The Criminal System, Kimberly A. Thomas

Articles

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind ...


Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann Jan 2013

Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann

Articles

On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss ...


What Was Wrong With The Record?, Ellen D. Katz Jan 2013

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.


Appraisal Theory: Old And New Questions, Phoebe C. Ellsworth Jan 2013

Appraisal Theory: Old And New Questions, Phoebe C. Ellsworth

Articles

I describe my current thinking on two old questions—the causal role of appraisals and the relationship of appraisal theories to basic emotions theories and constructivist theories, and three (sort of) new questions—the completeness of appraisals, the role of language, and the development of automaticity in emotional responses.


Globalizing Social Finance: How Social Impact Bonds And Social Impact Performance Guarantees Can Scale Development, Deborah Burand Jan 2013

Globalizing Social Finance: How Social Impact Bonds And Social Impact Performance Guarantees Can Scale Development, Deborah Burand

Articles

While the SIB structure is still in its infancy, there is momentum building to globalize this social finance innovation so that it can help scale development goals around the world. Taking the SIB global is not a simple matter, however. This article explores several of the more challenging issues that are likely to arise in applying a SIB or elements of the SIB structure to social problems and development goals in developing countries. The article begins with a summary review of the goals and structures used in the two earliest SIBs. It then discusses key challenges and opportunities that SIBs ...


On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr Jan 2013

On The Role Of Cost-Benefit Analysis In Criminal Justice Policy: A Response To The Imprisoner's Dilemma, Sonja B. Starr

Articles

With one in 100 adult Americans behind bars, and prison budgets consuming an increasing share of state budgets, few social policy issues compare in significance to the debate over which criminal offenders should be incarcerated and for how long. David Abrams' article, The Impriasoner's Dilemma: A Cost-Benefit Approach to Incarceration,' makes an important contribution to that debate, offering an economic approach to assessing the net benefits of holding or freeing prisoners on the incarceration margin. In this short Response, I first highlight several strengths of Abrams' piece and discuss the possible case that could be made for incorporating formal ...


Congress Underestimated: The Case Of The World Bank, Kristina Daugirdas Jan 2013

Congress Underestimated: The Case Of The World Bank, Kristina Daugirdas

Articles

This article challenges the oft-repeated claim that international organizations undermine democracy by marginalizing national legislatures. Over the past forty years, Congress has established itself as a key player in setting U.S. policy toward the World Bank. Congress has done far more than restrain executive branch action with which it disagrees; it has affirmatively shaped the United States’ day-to-day participation in this key international organization and successfully defended its constitutional authority to do so.


South Carolina's 'Evolutionary Process', Ellen D. Katz Jan 2013

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to ...


Corporate And International Tax Reform: Proposals For The Second Obama Administration (And Beyond), Reuven S. Avi-Yonah Jan 2013

Corporate And International Tax Reform: Proposals For The Second Obama Administration (And Beyond), Reuven S. Avi-Yonah

Articles

The passage of the American Taxpayer Relief Act of 2012 (ATRA) offers an opportune moment to consider proposals for corporate and international tax reform. With the debate over individual tax rates for the income and estate tax settled for the present, the President and Congress are free to consider broader reforms. Few observers doubt that such reforms are sorely needed, for several reasons. First, the long-term budgetary outlook is unsustainable. Second, the U.S. corporate tax rate is the highest in the Organisation for Economic Co-Operation and Development (OECD). Third, the current system raises relatively little revenue and large amounts ...


Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, Nicholas Bagley Jan 2013

Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, Nicholas Bagley

Articles

Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare’s operation. But questions about external control do not—or at least they should not—exhaust the field. An old and often disregarded tradition in administrative law ...