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Full-Text Articles in Law

Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek Dec 2017

Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

The absence of stated principles underlying the articulation of the black letter and comments – principles that the Reporters have said they will provide at the end of the process – continues to trouble the Draft. It remains unclear whether the Reporters are synthesizing positive law, or seeking to reform it. We are not contending that ALI should not push for law reform (even though Principles or some other form might provide a preferable and more transparent vehicle for aspirational endeavors), but we do think the objectives and methodology should be clear from the outset. We remain concerned that ALI’s …


Re-Envisioning Professional Education, Kimberly Austin, Elizabeth Chu, James S. Liebman Mar 2017

Re-Envisioning Professional Education, Kimberly Austin, Elizabeth Chu, James S. Liebman

Faculty Scholarship

In the dynamic, hyper-connected, and unpredictable 21st century, workplace and career paradigms are rapidly changing. The professions are no exception. Technology has routinized and increased access to the expertise that traditionally set professionals apart from other workers, leading some to forecast professions’ demise. Even if, as we suspect, new forms of complexity and needs for expertise continue to outrun technology, professionals’ lives and careers will diverge dramatically from past norms. In the world we anticipate, the number of theories, diagnoses, and strategies among which each professional — alone or in teams — must make informed and workable judgments will increase …


United States Response To Questionnaire Concerning Copyright: To Be Or Not To Be, Jane C. Ginsburg, June M. Besek, Nathalie Russell Feb 2017

United States Response To Questionnaire Concerning Copyright: To Be Or Not To Be, Jane C. Ginsburg, June M. Besek, Nathalie Russell

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.


The Utility Of Finance, Shlomit Azgad-Tromer, Eric L. Talley Jan 2017

The Utility Of Finance, Shlomit Azgad-Tromer, Eric L. Talley

Faculty Scholarship

Public Utilities Commissions (PUCs) are charged with regulating a public utility’s rates at levels that serve the public’s interest while allowing the utility’s investors to earn a rate commensurate with that expected by businesses facing similar risks. Although the process of adjusting rates for risk is a staple of modern finance, we know surprisingly little about how well accomplish their regulatory mandate when judged against the benchmarks of financial economics. This article analyzes a dozen years’ worth of gas and electric rate-setting decisions from PUCs in the United States and Canada, demonstrating empirically that allowed returns on equity (ROE) diverge …


Is Eu Merger Control Used For Protectionism? An Empirical Analysis, Anu Bradford, Robert J. Jackson Jr., Jonathon Zytnick Jan 2017

Is Eu Merger Control Used For Protectionism? An Empirical Analysis, Anu Bradford, Robert J. Jackson Jr., Jonathon Zytnick

Faculty Scholarship

The European Commission has often used its merger‐review power to challenge high‐profile acquisitions involving non‐E.U. companies, giving rise to concerns that its competition authority has evolved into a powerful tool for industrial policy. The Commission has been accused of deliberately targeting foreign – especially U.S. – acquirers, while facilitating the creation of European national champions. These concerns, however, rest on a few famous anecdotes. In this article, we introduce a unique dataset that allows us to provide the first rigorous examination of these claims. Our analysis of the over 5,000 mergers reported to the Commission between 1990 and 2014 reveals …


Hate Speech, Public Assurance, And The Civic Standing Of Speakers And Victims, Vincent A. Blasi Jan 2017

Hate Speech, Public Assurance, And The Civic Standing Of Speakers And Victims, Vincent A. Blasi

Faculty Scholarship

Jeremy Waldron and James Weinstein have opened up a promising line of inquiry regarding the legitimacy and propriety of hate speech regulation. In doing so, they have succeeded in reinvigorating a subject that had grown academically formulaic even while becoming alarmingly more salient politically and culturally. Together they have enriched our understanding with their specificity of argumentation, intellectual courage, fairminded attentiveness to critics and counter-arguments, comparative law perspective, and genuine originality of conception. I find that each has shown me at least one significant problem in the other’s analysis, a symmetry that I consider a tribute to both.


Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary Jan 2017

Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary

Faculty Scholarship

We review economics research regarding the effect of police, punishments, and work on crime, with a particular focus on papers from the last twenty years. Evidence in favor of deterrence effects is mixed. While there is considerable evidence that crime is responsive to police and to the existence of attractive legitimate labor-market opportunities, there is far less evidence that crime responds to the severity of criminal sanctions. We discuss fruitful directions for future work and implications for public policy.


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman Jan 2017

Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of …


Whither (Not Wither) Copyleft, Eben Moglen Jan 2017

Whither (Not Wither) Copyleft, Eben Moglen

Faculty Scholarship

This article contains an edited version of Professor Eben Moglen’s speech at the SFLC Fall Conference 2016. It explores the topic of Copyleft, enforcement and community engagement from the perspective of one of the key individuals in the rise of Free and Open Source Software from interesting idea to a central pillar of the global technology industry.


In Re Akhbar Beirut & Al Amin, Monica Hakimi Jan 2017

In Re Akhbar Beirut & Al Amin, Monica Hakimi

Faculty Scholarship

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal’s proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri.1 The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist’s freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.


From Territorial To Monetary Sovereignty, Katharina Pistor Jan 2017

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …


Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley Jan 2017

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.


Capacitating Services And The Bottom-Up Approach To Social Investment, Charles F. Sabel, Jonathan Zeitlin, Sigrid Quack Jan 2017

Capacitating Services And The Bottom-Up Approach To Social Investment, Charles F. Sabel, Jonathan Zeitlin, Sigrid Quack

Faculty Scholarship

A crucial component of the new social investment paradigm is the provision of capacitating social services aimed at the early identification and mitigation of problems. We argue that conceiving of this paradigm change as a comprehensive and concerted investment is misguided. That perspective ignores more practical, piecemeal approaches in which costs and benefits are clarified through efforts at implementation, rather than estimated ex ante. Similarly, in this bottom-up approach, reform coalitions are not formed through comprehensive initial bargaining, but rather developed on the fly as programmes demonstrate their benefits and create clienteles. A crucial proviso is that decentralized efforts are …


Freedom Of Information Beyond The Freedom Of Information Act, David Pozen Jan 2017

Freedom Of Information Beyond The Freedom Of Information Act, David Pozen

Faculty Scholarship

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes …


Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel Jan 2017

Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel

Faculty Scholarship

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the …


Race And The New Policing, Jeffrey Fagan Jan 2017

Race And The New Policing, Jeffrey Fagan

Faculty Scholarship

Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the …


How International Is International Law: Remarks By Lori F. Damrosch, Lori Fisler Damrosch Jan 2017

How International Is International Law: Remarks By Lori F. Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our moderator's questions begin with “in what sense is international law and in what sense isn't it universal?” and continue with whether international law may be “different in different places” and what the implications of such differences may be. I am here to defend the “universalist” perspective, as the immediate past president of the American Society of International Law and before that, editor-in-chief of the American Journal of International Law. Though both the Society and the Journal have “American” in their titles and our geographic headquarters is in the United States, the Society's mission statement commits us to pursue …


Heading Off A Cliff? The Tax Reform Man Cometh, And Goeth, Michael J. Graetz Jan 2017

Heading Off A Cliff? The Tax Reform Man Cometh, And Goeth, Michael J. Graetz

Faculty Scholarship

The major tax policy challenge of the 21st century is the need to address the nation’s fiscal condition fairly and in a manner conducive to economic growth. But since California adopted Proposition 13 nearly forty years ago, antipathy to taxes has served as the glue that has held the Republican coalition together. Even though our taxes as a percentage of our economy are low by OECD standards and low by our own historical experience, anti-tax attitudes have become even more important for Republicans politically, since they now find it hard to agree on almost anything else. So revenue-positive, or even …


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms …


Property And Sovereignty, Information And Audience, Thomas W. Merrill Jan 2017

Property And Sovereignty, Information And Audience, Thomas W. Merrill

Faculty Scholarship

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to …


Arbitration As Wealth Transfer, Deepak Gupta, Lina M. Khan Jan 2017

Arbitration As Wealth Transfer, Deepak Gupta, Lina M. Khan

Faculty Scholarship

Over the last few decades, the Supreme Court has steadily expanded the reach of forced arbitration clauses – clauses that companies embed in the fine print of standard-form contracts to deny consumers and workers the right to band together to sue those corporations in court. While the Court’s decisions that set this trend in motion trace back to the 1980s, the real game changers have been more recent: 2010’s Rent-A-Center v. Jackson, holding that arbitration clauses must be enforced even when they are part of an illegal contract; 2011’s AT&T Mobility v. Concepcion, granting companies the unfettered right …


Clarifying The Clear Meaning Of Separability, Shyamkrishna Balganesh Jan 2017

Clarifying The Clear Meaning Of Separability, Shyamkrishna Balganesh

Faculty Scholarship

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges therein:

[T]he statute, like its predecessors, leaves the development of fundamentals to the judges. Indeed the courts have had to be consulted at nearly every point, for the text of the statute has a maddeningly casual prolixity and imprecision throughout....

Judges, however, who in recent times have inclined against brutality, have run the risk of appearing slightly ridiculous in their tortuous interpretations.

The Copyright Act of 1976 was designed to avoid this imprecision and overt reliance on judicial creativity. …


Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan Jan 2017

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.


Informants & Cooperators, Daniel C. Richman Jan 2017

Informants & Cooperators, Daniel C. Richman

Faculty Scholarship

The police have long relied on informants to make critical cases, and prosecutors have long relied on cooperator testimony at trials. Still, concerns about these tools for obtaining closely held information have substantially increased in recent years. Reliability concerns have loomed largest, but broader social costs have also been identified. After highlighting both the value of informants and cooperators and the pathologies associated with them, this chapter explores the external and internal measures that can or should be deployed to regulate their use.


Moore Kinship: Foreword, R.A. Lenhardt, Clare Huntington Jan 2017

Moore Kinship: Foreword, R.A. Lenhardt, Clare Huntington

Faculty Scholarship

Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., …


The Agency Costs Of Activism: Information Leakage, Thwarted Majorities, And The Public Morality, John C. Coffee Jr. Jan 2017

The Agency Costs Of Activism: Information Leakage, Thwarted Majorities, And The Public Morality, John C. Coffee Jr.

Faculty Scholarship

Few doubt that hedge fund activism has radically changed corporate governance in the United States – for better or for worse. Proponents see activists as desirable agents of change who intentionally invest in underperforming companies to organize more passive shareholders to support their proposals to change the target’s business model and/or management. So viewed, the process is fundamentally democratic, with institutional shareholders determining whether or not to support the activist’s proposals.

Skeptics respond that things do not work this simply. Actual proxy contests are few, and most activist engagements are resolved through private settlement negotiations between the activists, who rarely …


Police Contact And Mental Health, Amanda Geller, Jeffrey Fagan, Tom R. Tyler Jan 2017

Police Contact And Mental Health, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Although an effective police presence is widely regarded as critical to public safety, less is known about the effects of police practices on mental health and community wellbeing. Adolescents and young adults in specific neighborhoods of urban areas are likely to experience assertive contemporary police practices. This study goes beyond research on policing effects on legal socialization to assess the effects of police contact on the mental health of those stopped by the police. We collected and analyzed data in a two wave survey of young men in New York City (N=717) clustered in the neighborhoods with the highest rates …


Stilling The Pendulum: Regulatory, Supervisory, And Structural Approaches, Lev Menand Jan 2017

Stilling The Pendulum: Regulatory, Supervisory, And Structural Approaches, Lev Menand

Faculty Scholarship

Financial regulation is often described as a swinging pendulum. A crisis occurs, and some number of years are spent crafting reforms to prevent another crisis from striking. Unfortunately, all too aware of the enormous costs of the recent disruption, policymakers go too far, stifling salutary financial activity and slowing economic growth. As memories fade, policymakers become increasingly focused on the costs of regulation. Stability is taken for granted, and restrictions are loosened. Markets stay stable and retrenchment continues. Regrettably, however, policymakers err again, and to our collective shock and horror, another crisis hits and the cycle repeats.

If this model …


Jerry L. Mashaw And The Public Law Curriculum, Peter L. Strauss Jan 2017

Jerry L. Mashaw And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Jerry L. Mashaw’s magisterial account of the first one hundred years of Administrative law sharply distinguishes between internal and external administrative law – between those contributions to the regularity and legality of agency behavior that emerge from its own institutions and practices, and the constraints imposed by external actors – legislative, executive, and judicial. The “systems of internal control and audit” he found common to nineteenth-century governance are subordinated, if not suppressed in today’s thinking about administrative law.

In our world of multiple transsubstantive statutes and ubiquitous judicial review, we tend to think of our administrative constitution as a set …