Law Commons^™

The Team Production Theory Of Corporate Law: A Critical Assessment, Alan J. Meese

Alan J. Meese

No abstract provided.

Up Close And Personal With Delaware, Darian M. Ibrahim, Brian J. Broughman

Darian M. Ibrahim

No abstract provided.

Delaware’S Familiarity, Brian J. Broughman, Darian M. Ibrahim

Darian M. Ibrahim

No abstract provided.

The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason

Eric D. Chason

No abstract provided.

Foreword: Property Rights And Economic Development, Eric Kades

Eric A. Kades

No abstract provided.

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries …

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

Jay Tidmarsh

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, …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

¡Las Preferencias Dependen Del Punto De Referencia!: Un Desafío Al Análisis Económico –Y Coaseano– Del Derecho, Daniel A. Monroy

Daniel A Monroy C

The “coasean” theory of Law and the theory of Law & Economics (L&E) in general, implicitly assume the truthfulness of certain behavioral assumptions: the "preference exogeneity" and "reference independence". In this context, this paper points out some objections to these assumptions, and in this order, the paper shows multiple and deep inconsistencies with regard to: (i) how the L&E predicts individual behavior and the effects of legal rules, and (ii) –from a normative point of view– the way that economic theory recommends the lawmakers decisions. The paper also shows some L&E challenges associated with the behavioral assumption that people value …

Using Social Norms As A Substitute For Law, Bryan H. Druzin

Bryan H. Druzin

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

La Insoportable Levedad Del Legislador Argentino En Materia De Derecho De Autor Digresiones Jurídico-Económicos En Torno Al Proyecto Legislativo Que Propone Extender La Duración De Las Obras Fotográficas, Maximiliano Marzetti

Maximiliano Marzetti

Este aporte tiene una doble finalidad, catártica y educativa. Por un lado quiero desahogarme al ver como la historia se repite: la vetusta ley de propiedad intelectual N° 11.723 sólo se retoca para extender privilegios económicos de un sector y no en beneficio del bien común. Por otro, continúo mi prédica para intentar convencer a colegas y legisladores para que se adentren en el fabuloso mundo de la multidisciplina. Necesitamos legisladores que sepan de derecho, economía y ciencias sociales, o al menos que sepan escuchar a quienes saben.

Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui

Wei Cui

This Article offers the first comprehensive appraisal in both the legal and economic literatures of proposals for adopting destination-based cash flow taxation (DCFT) of multinational corporations. The DCFT was a key recommendation for reforming corporate taxation in the U.K., and has subsequently attracted wide attention as a way to fundamentally reform international taxation in the U.S., Europe and elsewhere. The core intuition of the DCFT is to tax profits earned by mobile capital by reference to immobile factors. I distinguish three versions of the DCFT for implementing this intuition: 1. formulary apportionment of business profits by reference to locations of …

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British …

The Law And Economics Of Consumer Debt Collection And Its Regulation, Todd J. Zywicki

Todd J. Zywicki

This article reviews the law and economics of consumer debt collection and its regulation a topic that has taken on added urgency in light of the announcement by the Consumer Financial Protection Bureau that it is considering new regulations on the subject. Although stricter regulation of permissible debt collection practices can benefit those consumers who are in default and increase demand for credit by consumers, overly-restrictive regulation will result in higher interest rates and less access to credit for consumers, especially higher-risk consumers. Regulation of particular practices may also have the unintended consequence of providing incentives for creditors to more …

Una Aproximación Neoinstitucionalista Al Derecho (Económico) Internacional, Daniel A. Monroy

Daniel A Monroy C

ResumenEste artículo indaga acerca de cómo el análisis económico del derecho (AED) puede servir a los juristas-internacionalistas para examinar ciertas cuestiones relevantes del derecho internacional (DI) en general y del derecho económico internacional (DEI) en específico. Concretamente, se sostiene la hipótesis de que la denominada “Nueva Economía Institucional” (NEI) representan una alternativa de aproximación económica consistente y que se ajusta de forma adecuada al contexto del DI. Para demostrar la hipótesis, el artículo sintetiza algunos conceptos propios de la NEI, y a partir de ellos trata de establecer sendos paralelos con cuestiones propias del DI. Los conceptos que se …

"Globalization And Legal Culture. The Influence Of Law & Economics’ Blogs In Developing Countries,", Críspulo Marmolejo

Críspulo Marmolejo

This paper considers the relationship between blogs and Law and Economics from two perspectives: some aspects of the law and economics approach to blogging, and the influence of blogs in the diffusion of Law and Economics. The article explores how blogs are a modern way of low cost domestic journalism, in a context in which the increasingsize of the blogosphere is a current challenge in terms of free speech and quality of the information. At the same time, blogs such as “The Volokh Conspiracy” are playing an interesting role in the American legal academia as areal instrument to analyze the …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman

Thomas S Glassman

Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges …

Democratizing Startups, Seth C. Oranburg

Seth C Oranburg

The Jumpstart Our Business Startups Act of 2012 intends to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number over 111. More money is going into huge …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Access To Justice, Costs, And Legal Aid, James P. George

James P. George

If the ideal of justice is not pervasive in the United States, the issue of justice is-not so much in its rendition, but in its penetration of news, politics and entertainment. Current media issues include the death penalty--erroneous convictions and the lack of lawyers for appeals; tort reform--conflicting data on medical malpractice litigation and a perceived abuse of class actions; and the judiciary itself--judicial selection, political attacks on so-called "activist judges," and the sometimes hidden issue of court budgets. Within this fascination, the multiple problems in accessing justice are lost.

This article is excerpted from a report done for the …

Reimposable Discounts And Medieval Contract Penalties, James P. George

James P. George

Penalty damages in contract -- contrary to Anglo-American law since the late Middle Ages -- ironically are common as reimposed discounts in modern consumer contracts. The reimposable discount is a late-twentieth-century sales scheme that combines legal puffery with illegal penalties. These pitches are used to sell furniture, appliances, cell phones, cars, to rent apartments, and to promote elective eye surgery. The offers are tempting and often heavily marketed in the media.

The common premise is that if the buyer acts now, the seller will discount the good or service by reducing the price, or by postponing the first payment and …

Jurisdictional Implications In The Reduced Funding Of Lower Federal Courts, James P. George

James P. George

This article argues two related propositions. First, if Congress were to eliminate all funding for lower federal courts, its constitutional authority to regulate those courts would become as meaningless as the empty courthouses. Second, Congress breaches its duty to furnish a forum at a point short of full defunding, and with that breach, Congress's regulatory power over private civil disputes otherwise litigable in state courts--preempted and removable state law claims--becomes constitutionally invalid. The first fact setting of full defunding is hypothetical; the second has been underway for several years.

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

La Competencia Entre Productos Y Sistemas Jurídicos, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

Samuel R. Olken

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

Book Review: The Microsoft Antitrust Cases - Competition Policy For The Twenty-First Century., Daniel Rubinfeld

Daniel L. Rubinfeld

No abstract provided.

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

Wendy Netter Epstein

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …