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Journal Articles

2009

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Institution
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Articles 1 - 30 of 195

Full-Text Articles in Law

On The Many Flavors Of Capitalism Or Reflections On Schumpeter's Ghost, John Henry Schlegel Dec 2009

On The Many Flavors Of Capitalism Or Reflections On Schumpeter's Ghost, John Henry Schlegel

Journal Articles

Most legal scholars treat capitalism as a genus with one species. The appearance of several books that argue to the contrary suggests that it is sensible to revisit this assumption. Discussion begins by considering the constructed nature of markets, the importance of market systems, and the role of financings as the factor distinguishing capitalism from other forms of a market economy. Thereafter, four articulations of the varieties of capitalism are reviewed: the classic Marxist one, one by a political economist, another by a pair of comparative political scientists, and third by a trio of economists. This review leads to a ...


Uprooting Identities: The Regulation Of Olive Trees In The Occupied West Bank, Irus Braverman Nov 2009

Uprooting Identities: The Regulation Of Olive Trees In The Occupied West Bank, Irus Braverman

Journal Articles

The Israeli/Palestinian conflict has rarely been associated with trees in the common perception. This article reveals the complex historical and cultural processes that have led to strong identification between the olive tree and the Palestinian people, arguing that this identification is not only a reflection of the olive’s unique economic and cultural status in this region but also an act of resistance to Israel’s occupation. The article also explains how Israel’s tightening of surveillance, practiced in the name of olive protection, actually ends up forcing an alien set of spatial and temporal regimes on the everyday ...


Dorothy Kenyon And The Making Of Modern Legal Feminism, Samantha Barbas Oct 2009

Dorothy Kenyon And The Making Of Modern Legal Feminism, Samantha Barbas

Journal Articles

No abstract provided.


Expanding The P-4 Trade Agreement Into A Broader Trans-Pacific Partnership: Implications, Risks And Opportunities, Meredith Kolsky Lewis Sep 2009

Expanding The P-4 Trade Agreement Into A Broader Trans-Pacific Partnership: Implications, Risks And Opportunities, Meredith Kolsky Lewis

Journal Articles

In 2005, New Zealand, Singapore, Chile and Brunei entered into a path-breaking free trade agreement, the Trans-Pacific Strategic Economic Partnership Agreement which is also known as the P-4 Agreement. The agreement contains an open accession provision which explicitly contemplates the expansion of the agreement to include other countries willing to commit to its terms. The expansion of the agreement has important implications for the world trading system. Its broad coverage and open accession provision may suggest that the agreement has the potential to serve as a stepping stone in the path towards further multilateral trade liberalization in the WTO context ...


Worker Well-Being In The 21st Century: Addressing The Psychosocial Context Of Work, Barbara Fick Aug 2009

Worker Well-Being In The 21st Century: Addressing The Psychosocial Context Of Work, Barbara Fick

Journal Articles

The world of work has undergone significant change since the days when nation-states first began addressing the issue of worker well-being. Early legal responses (such as worker compensation laws and health and safety regulations) focused on the physical environmental hazards to which workers were subjected, e.g. unsafe machinery or exposure to toxic chemicals. The transformation in the nature of work to a service-oriented economy has led many to rethink the types of hazards to which workers are exposed. Recent research has focused on the psychological and social environment in the workplace and how that may contribute to undermining worker ...


Not Just Collective Bargaining: The Role Of Trade Unions In Creating And Maintaining A Democratic Society, Barbara Fick Jun 2009

Not Just Collective Bargaining: The Role Of Trade Unions In Creating And Maintaining A Democratic Society, Barbara Fick

Journal Articles

This essay addresses the historical and contemporary roles which trade unions have played in creating conditions necessary for democracy to flourish. Their effectiveness in fulfilling these roles is due in large measure to the organizational characteristics which make trade unions the archetypal civil society organization: democratic representation, demographic representation, financial independence, breadth of concerns and placement within society. This essay explores these aspects of the trade union movement and suggests that advocates for democracy have cause for concern in the absence of a vibrant, and independent, domestic trade union movement.


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

Journal 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 ...


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

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

Journal Articles

No abstract provided.


Incentivizing Divorce, Andrea B. Carroll May 2009

Incentivizing Divorce, Andrea B. Carroll

Journal Articles

Marriage is an important relationship, both for the parties to it and for society as a whole. Its benefits, stemming from the economies of scale and joint consumption inherent in the relationship, are largely unquestionable. And when marriage fails, the results are rather staggering. Economically, it is estimated that the annual cost of divorce to American taxpayers approaches $30 billion. From a social science perspective, the negative impacts of divorce on women and children have long been decried. In the face of these facts, we expect family law to fulfill a certain role. It should channel parties into the relationship ...


Awaking Rip Van Winkle: Has The National Labor Relations Act Reached A Turning Point?, William Corbett May 2009

Awaking Rip Van Winkle: Has The National Labor Relations Act Reached A Turning Point?, William Corbett

Journal Articles

No abstract provided.


Land Virtues, Eduardo Peñalver May 2009

Land Virtues, Eduardo Peñalver

Journal 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 ...


The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley May 2009

The Appropriations Power And Sovereign Immunity,, Jay Tidmarsh, Paul F. Figley

Journal Articles

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English ...


Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish Apr 2009

Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish

Journal Articles

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty ...


Foreseeability And Copyright Incentives, Shyam Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyam Balganesh

Journal 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 ...


Adjusting Alienability, Lee Anne Fennell Mar 2009

Adjusting Alienability, Lee Anne Fennell

Journal 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

Journal Articles

No abstract provided.


Visits To A Small Planet: Rights Talk In Some Science Fiction Film And Television Series From The 1950s To The 1990s, Christine Corcos Jan 2009

Visits To A Small Planet: Rights Talk In Some Science Fiction Film And Television Series From The 1950s To The 1990s, Christine Corcos

Journal Articles

No abstract provided.


Seeing The Global Forest For The Trees: How U.S. Federalism Can Coexist With Global Goverance Of Forests, Blake Hudson, Erika Weinthal Jan 2009

Seeing The Global Forest For The Trees: How U.S. Federalism Can Coexist With Global Goverance Of Forests, Blake Hudson, Erika Weinthal

Journal Articles

Both international forest and climate negotiations have failed to produce a legally binding treaty that addresses forest management activities - either comprehensively or more narrowly through carbon capture - due, in part, to lack of US leadership. Though US cooperation is crucial for facilitating both forest and climate negotiations, the role of federalism in constraining these trends has been given scant attention. We argue that, as embodied in the US Constitution, federalism complicates the US’s role in creating any legally binding treaty that directly regulates land uses (e.g. forest management). Because federalism reserves primary land use regulatory authority for state ...


Fixing Employment Discrimination Law, William R. Corbett Jan 2009

Fixing Employment Discrimination Law, William R. Corbett

Journal Articles

Employment discrimination law in the United States is "broken." The proof structures that are used to analyze claims,rule on motions, and instruct juries are fraught with crucial uncertainties. The state of disrepair is so bad that lawyers and judges do not know how to analyze any given case. It is time for Congress to repair the proof structures through legislation, and it is a propitious time to do so. This article proposes the repairs that Congress should enact.


Randomization In Criminal Justice: A Criminal Law Conversation, Ken Levy, Michael O'Hear, Bernard E. Harcourt, A. Harel Jan 2009

Randomization In Criminal Justice: A Criminal Law Conversation, Ken Levy, Michael O'Hear, Bernard E. Harcourt, A. Harel

Journal Articles

No abstract provided.


Working Group On Chapter 2 Of The Proposed Restatement Of Employment Law: Employment Contracts: Termination, William Corbett, Matthew W. Finkin, Lea Vander Velde, Stephen F. Befort Jan 2009

Working Group On Chapter 2 Of The Proposed Restatement Of Employment Law: Employment Contracts: Termination, William Corbett, Matthew W. Finkin, Lea Vander Velde, Stephen F. Befort

Journal Articles

No abstract provided.


International Law And Domestic Legitimacy: Remarks Prepared For Lincoln’S Constitutionalism In Time Of War: Lessons For The Current War On Terror?, Scott Sullivan Jan 2009

International Law And Domestic Legitimacy: Remarks Prepared For Lincoln’S Constitutionalism In Time Of War: Lessons For The Current War On Terror?, Scott Sullivan

Journal Articles

No abstract provided.


Original Jurisdiction Deadlocks, Michael Coenen Jan 2009

Original Jurisdiction Deadlocks, Michael Coenen

Journal Articles

When a member of the Supreme Court is unable to hear a case, the remaining Justices will occasionally split 4-4 on the case's merits. Normally, such a tie vote translates into a summary affirmance of the lower court ruling, but it remains an open question how the Court should deal with deadlock in the original jurisdiction context, where by definition there is no lower court ruling to affirm. The Court has from its inception lacked a clear and principled approach to original jurisdiction deadlocks (OJDs), and as a result it has dealt awkwardly with those it has confronted in ...


The Public And Wildlife Trust Doctrines And The Untold Story Of The Lucas Remand, Blake Hudson Jan 2009

The Public And Wildlife Trust Doctrines And The Untold Story Of The Lucas Remand, Blake Hudson

Journal Articles

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute ...


Hugo Black And Judicial Lawmaking: Forty Years In Retrospect, Paul R. Baier Jan 2009

Hugo Black And Judicial Lawmaking: Forty Years In Retrospect, Paul R. Baier

Journal Articles

No abstract provided.


Beyond Black Ink: From Langdell To The Oyez Project--The Voice Of The Past, Paul R. Baier Jan 2009

Beyond Black Ink: From Langdell To The Oyez Project--The Voice Of The Past, Paul R. Baier

Journal Articles

No abstract provided.


A Sprig Of Laurel For Chief Justice Calogero, Paul R. Baier Jan 2009

A Sprig Of Laurel For Chief Justice Calogero, Paul R. Baier

Journal Articles

No abstract provided.


Recodification In Louisiana And Latin America, Olivier Moreteau, Agustín Parise Jan 2009

Recodification In Louisiana And Latin America, Olivier Moreteau, Agustín Parise

Journal Articles

No abstract provided.


A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski Jan 2009

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Journal Articles

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.


Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski Jan 2009

Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski

Journal Articles

No abstract provided.