Law Commons^™

Procedure, Substance, And Erie, Jay Tidmarsh

Journal Articles

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal courts …

Designing Surveillance Law, Patricia L. Bellia

Journal Articles

As communications surveillance techniques become increasingly important in government efforts to detect and thwart criminal and terrorist activities, questions of how to reconcile privacy and law enforcement interests take on paramount importance. These questions have institutional as well as substantive dimensions. That is, the issue is not simply what the limits on communications surveillance should be, but who should set them — courts through application of the Fourth Amendment or legislatures through statutes and the oversight process? The scholarly literature offers divergent positive and normative perspectives on these questions.

For most scholars, the question of who should regulate communications surveillance …

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Behavioral Antitrust: A New Approach To The Rule Of Reason After Leegin, William J. Rinner, Avishalom Tor

Journal Articles

The Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which replaced the longstanding per-se rule against resale price maintenance (RPM) with a rule of reason approach, has resurrected the debate over RPM. Legal and economic proponents of this practice again point to its potential procompetitive benefits, while RPM detractors emphasize its possible anticompetitive consequences. Despite their disagreements regarding the overall RPM evaluation, however, scholars, the Court, and the limited empirical data appear near-unanimous in agreeing that such arrangements can either increase or decrease efficiency. Consequently, the RPM debate predominantly revolves around theoretical assertions regarding the …

The Self-Judging Wto Security Exception, Roger P. Alford

Journal Articles

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address …

International Cooperation And The Patent-Antitrust Intersection, Stephen Yelderman

Journal Articles

Commentators have long recognized the need to coordinate questions at the patent-antitrust intersection with other policy levers available under patent law. In the international context, however, control over patent policy has been fractured and entrusted to diverse decisionmakers. Many details of patent law are tightly coordinated by international agreement, while others related to antitrust are left to national discretion. This Article evaluates the consequences of this fracture, and notes ways in which the prevailing treaty regimes (the Paris Convention and the TRIPS Agreement) distort incentives for national policymaking. National discretion at the patent-antitrust intersection can be expected to result in …

Do Joint Parenting Laws Make Any Difference?, Margaret Brinig, Douglas W. Allen

Journal Articles

Using a unique data set on divorcing couples, we analyze the effects of a change in legal entitlement on the outcomes for divorcing couples. In particular, we analyze the 1997 change to custody provisions in the State of Oregon. Prior to 1997, Oregon assigned custody, based on the discretion of the court, in the best interests of the child. This was changed to a presumption- of joint parenting, which manifests in the courts encouraging and imposing joint (or shared) custody in cases that otherwise would have had sole custody arrangements. We find that the law had several implications for divorce …

Foreword Advances In The Behavioral Analysis Of Law: Markets, Institutions, And Contracts, Avishalom Tor

Journal Articles

The collection of articles in this Special Issue is based on an international conference on Advances in the Behavioral Analysis of Law: Markets, Institutions, and Contracts that took place on December 8, 2009 at the University of Haifa Faculty of Law in Israel. The conference addressed cutting edge legal issues at the intersection of law, economics, and psychology from a diverse set of viewpoints, bringing together scholars engaged in both theoretical and experimental behavioral analyses of law.

The behavioral analysis of law—the application of empirical behavioral evidence to legal analysis—has become increasingly popular in legal scholarship in recent years. This …

Charting A Course In Clearing, Colleen Baker

Journal Articles

Memorable tales of financial collapse, such as that of Lehman Brothers (Lehman), Bear Stearns, and American Financial Group (AIG), frequently drive narratives of financial market crises and future preventative regulatory solutions. Much U.S. financial regulation, such as the monumental and historic “Dodd-Frank Wall Street Reform and Consumer Protection Act,” (Dodd-Frank) can be understood from this perspective. Aspects of such responses, however, are sometimes puzzling. An example is the reforms surrounding certain financial market utilities in Dodd-Frank’s Title VIII, “Payment, Clearing, and Settlement Supervision Act of 2010” (Title VIII). Financial market utilities often play a vital role in a process known …

Rules For Growth: Promoting Innovation And Growth Through Legal Reform, Nicole Stelle Garnett, Robert E. Litan, Yochai Benkler, Henry N. Butler, John Henry Clippinger, Robert Cook-Deegan, Robert D. Cooter, Aaron S. Edlin, Ronald J. Gilson, Oliver R. Goodenough, Gillian K. Hadfield, Mark A. Lemley, Frank Partnoy, George L. Priest, Larry E. Ribstein, Charles F. Sabel, Peter H. Schuck, Hal S. Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler Iii, Alan D. Viard, Benjamin Wittes

Journal Articles

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus - deficit-spending and monetary stimulus - policymakers are understandably eager to find innovative no-cost ways of sustaining growth both in the short and long runs. In response to this challenge, the Kauffman Foundation convened a number of America’s leading legal scholars and social scientists during the summer of 2010 to present and discuss their ideas for changing legal rules and policies to promote innovation and accelerate U.S. economic growth. This meeting led to the publication …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Journal Articles

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Equality And Differences, John M. Finnis

Journal Articles

This revised and annotated version of the H.L.A. Hart Memorial lecture in the University of Oxford in June 2011 has some significant differences in coverage from the essay of the same title published in the American Journal of Jurisprudence 56 (2011) 17-44, including a brief discussion of Waldron’s treatment of basic equality and Cohen’s “luck-egalitarianism”. The object of the lecture is to establish the grounds of basic human equality, and to indicate how neglect of non-basic inequalities and of preconditions for sustainable common good tends to ensure that legal measures promoting equality rights and condemning ‘discrimination’ yield serious injustices (violations …

Justice For Hedgehogs, Robert E. Rodes

Journal Articles

Professor Dworkin begins this complex and ambitious book with a chapter called "Baedeker" after the nineteenth century guidebooks. In it, he gives an overview of his project, which is to show "the unity of value." The "title refers to a line by an ancient Greek poet, Archilochus, that Isaiah Berlin made famous for us. The fox knows many things, but the hedgehog knows one big thing. Value is one big thing" (1).

He articulates his overarching value in terms of human dignity: "[W]e each have a sovereign ethical responsibility to make something of value of our own lives, as a …

Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root

Journal Articles

This article explores the rise of the corporate compliance monitor as a condition for settling violations of the U.S. Foreign Corrupt Practices Act (“FCPA”) — a setting in which federal prosecutors routinely impose monitors. If U.S. enforcement authorities maintain their current approach, the reality is that companies facing liability for violating the FCPA are likely to have a monitor imposed on them as part of a settlement agreement. From the U.S. government’s perspective, monitorships make sense for companies that violate anti-bribery laws, making it important for offending corporations to learn how to deal with monitors. Pulling from the authors’ extensive …

See The Mojave!, John C. Nagle

Journal Articles

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Journal Articles

Justice William Brennan rightfully reminded all of us that state constitutional law is too often neglected in our courtrooms and our classrooms. State constitutions, to borrow from the late Chief Justice William Rehnquist, ought not to be "relegated to the status of a poor relation" in our constitutional legal structure. They differ in important ways from the federal law Constitution-and those differences provide the space within which our democratic experiment flourishes. And I am sure if Justice Brennan were here with us today, he would agree that we also should not neglect the study of the state and local policies …

Ngo Standing And Influence In Regional Human Rights Courts And Commissions, Lloyd Hitoshi Mayer

Journal Articles

This article explores the extent to which nongovernmental organizations (NGOs) have standing to bring claims in the European, Inter-American, and African human rights enforcement systems, examines the degree to which NGOs in fact bring such cases, and analyzes the ramifications of NGO involvement in these systems. Part I of this article considers how NGOs can be involved in the European Court of Human Rights, the Inter-American Human Rights Commission and the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. As detailed in this part, while …

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Journal Articles

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …

Headline Kidnappings And The Origins Of The Lindbergh Law, Barry Cushman

Journal Articles

The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh’s child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had …

Symposium: Creativity And The Law: Introduction, Mark P. Mckenna

Journal Articles

Creativity is on the American mind. President Obama routinely suggests that creativity and ingenuity are the keys to America's economic future. Bill Gates emphasizes the power of creativity to solve the world's most pressing, and most difficult, problems. 2 But the creativity story is, of late, usually bleakly told: indeed, a recent Newsweek cover story proclaimed a "Creativity Crisis." Last November, a group of twelve academics gathered at the Notre Dame Law School to consider law's role in this story. What is creativity, and how does it map onto legal concepts like originality, novelty, or non-obviousness? What should law, and …

Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford

Journal Articles

With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Journal Articles

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …

Intergenerational Progress, Brett Frischmann, Mark P. Mckenna

Journal Articles

This Essay prepared for the Wisconsin Law Review’s symposium on Intergenerational Equity lays the groundwork for a broader understanding of the goals of IP law in the United States by arguing that there is room for a normative commitment to intergenerational justice. First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress; courts’ and scholars’ overwhelming …

How Much Should China Pollute?, John C. Nagle

Journal Articles

The debate concerning how much China should pollute is at the heart of international negotiations regarding climate change and environmental protection more generally. China is the world’s leading polluter and leading emitter of greenhouse gases. It insists that it has a right to emit as much as it wants in the future. China interprets the principle of “common but differentiated responsibilities” to mean that China has a responsibility to help avoid the harmful consequences associated with climate change, but that its responsibility is different from that imposed on the United States and the rest of the developed world. In fact, …

Pornography As Pollution, John C. Nagle

Journal Articles

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Journal Articles

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Journal Articles

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

A Winn For Educational Pluralism, Nicole Stelle Garnett

Journal Articles

This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing …