Law Commons^™

More Heat Than Light: A Critical Assessment Of The Gay Parenting Literature, 1995--2010, Douglas W. Allen Professor

Douglas W Allen Professor

Since 1995 there have been fifty-two studies of gay parenting which include some type of child outcome measure. The vast majority of these studies conclude that children raised by gay parents perform as well, if not better, than their counterparts in heterosexual families. This conclusion, which may or may not be true, is not scientifically warranted due to the limitations of the studies These include: some results are misreported; the entire literature is exploratory in nature and made up of small qualitative samples, biased data, and other research design failures; the studies concentrate almost exclusively on lesbian families; and outcome …

On Tax Increase Limitations: Part I - A Costly Incoherence, David Gamage, Darien Shanske

David Gamage

In this essay, the first of a series, we explore the theoretical implications of one particular type of fiscal limitation on state legislatures - namely, special rules limiting tax increases. In this first essay we will explore the analytic soundness of these tax increase limitations (TILs). In future essays in this series we will analyze some of the consequences of TILs and in particular how they can be 'evaded.' We will argue over the course of this series of essays that because there is no meaningful content to the term 'tax increase' as it is used in TILs, legislative majorities …

How Can Open Source And Closed Source Software Business Structures Mutually Exist, Yugank Goyal, Padmanabha Ramanujam

Yugank Goyal

The phenomenon of producing Open Source Software based on unconstrained access to source code and the swift growth of the open source business structure of producing software fuelled by Linux Operating System and Apache Web Server have raised important questions, which are of immense scholastic interest. Accordingly many scholars in the last few years have endeavoured to clarify as to why thousands of top-quality programmers contribute freely to an open source product which is a public good. However, there has hardly been any attempt to explain how open source and closed source business structure of producing software can coexist. This …

A Health Care Autopsy, Marc Gans

Marc Gans

This paper analyzes each of the factors responsible for the rapid rise in health care spending in this country. This includes an in-depth analysis of prescription drug expenditures, which has been the fastest growing component of health care costs. Lastly, this paper will address whether there is anything particularly unique about health care spending in California.

Imperial Ignition: Ecological Debt, Greenhouse Development Rights And Climate Change, Jonathan Stribling

Jonathan Stribling

This paper argues for legal principles to remedy the harm done to those least responsible for yet most affected by climate change. It examines approaches to developing the concepts of ecological and climate debt in U.S. law. This paper argues for the importance of understanding ecological debt and particularly “climate debt” in order to sustainably remedy climate change. The paper also argues that the principles of capacity and responsibility, which are the basis of the Greenhouse Development Rights (GDR) framework, are critical to remedying climate debt and should be included in global climate negotiations and U.S. environmental law.

Examining The Legal Mandate Of The International Fund For Agricultural Development (Ifad) In Financing Development: A Question Of Legal Limitation Or Performance?, Marieclaire Colaiacomo, Faith Kamau

Marieclaire Colaiacomo

Examining the Legal Mandate of the International Fund for Agricultural Development (IFAD) in Financing Development: A Question of Legal Limitation or Performance?*

Faith Kamau and Marieclaire Colaiacomo

Abstract

In the wake of the global food crisis, IFAD’s relevance as a financier of agricultural development in developing countries has been in the limelight. Indeed there are concerns over what appears to be a problem of misalignment between IFAD’s legal mandate, its resources and the high expectations placed on the IFAD’s role in agricultural development. Given the trends in the global food situation, the urgency in coming up with adequate responses to …

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

David A. Wirth

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of precaution as …

Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth

David A. Wirth

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. …

Investing In Distressed Italian Companies Under The Reformed Italian Bankruptcy Law - A Comparison With The Us Bankruptcy Code, Pierantonio Musso

Pierantonio Musso

This article presents a scheme to profitably invest in distressed Italian companies by taking advantage of the Italian Bankruptcy Law in comparison with the US Bankruptcy Code. The risks connected to the insolvency proceeding are analyzed under their economic effects and foreseen in their general appearance. Specific remedies to avoid or mitigate the potential risks are provided. Singular advantages, available only in the proposed investment scheme under the Italian Law, are described. As a result the investment produces a less risky and more profitable outcome than an investment in a non-distressed and non-Italian target company.

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

Resolving Large, Complex Financial Firms, Thomas Fitzpatrick, Mark Greenlee, James Thomson

James B Thomson

How to best manage the failure of systemically important fi nancial fi rms was the theme of a recent conference at which the latest research on the issue was presented. Here we summarize that research, the discussions that it sparked, and the areas where considerable work remains.

Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy

Michael H LeRoy

Using a database of 83 published court opinions from 1970-2011, I show that players have utilized conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act, and bargained collectively with leagues. Often, however, they lacked bargaining power to modify the draft or reserve clause, which bound them to a team. Players sued, therefore, under the Sherman Act to challenge these practices as restraints of trade. Thus, players have used a dual engagement strategy of bargaining with leagues under the NLRA while holding identical negotiations under the threat of Sherman Act treble damages. …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Damages To Business Interests, R. Steven Thing

R. Steven Thing

No abstract provided.

Derecho, Conflictos Y Juegos, Críspulo Marmolejo

Críspulo Marmolejo

No abstract provided.

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

The ‘Fair’ Trade Law Of Nations, Or A ‘Fair’ Global Law Of Economic Relations?, Frank J. Garcia

Frank J. Garcia

No abstract provided.

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

Complexity, Innovation And The Regulation Of Modern Financial Markets, Dan Awrey

Dan Awrey

The intellectual origins of the global financial crisis (GFC) can be traced back to blind spots emanating from within conventional financial theory. These blind spots are distorted reflections of the perfect market assumptions underpinning the canonical theories of financial economics: modern portfolio theory; the Modigliani and Miller capital structure irrelevancy principle; the capital asset pricing model and, perhaps most importantly, the efficient market hypothesis. In the decades leading up to the GFC, these assumptions were transformed from empirically (con)testable propositions into the central articles of faith of the ideology of modern finance: the foundations of a widely held belief in …

The Case Against Credit Bidding: Optimal Creditor Behavior In Chapter 11 Collateral Auctions, Jared Kawalsky

Jared Kawalsky

This paper will attempt to advance some theoretical justifications for recent bankruptcy decisions that have denied the existence of a right for secured creditors to credit bid in the course of a reorganization under § 1129 of the Bankruptcy Code. § 363 of the Bankruptcy Code specifically grants secured creditors the right to bid their credit in a sale of their collateral as part of a going concern sale. However, in a reorganiztion under § 1129, secured creditors are not necessarily permitted to participate in an auction of the collateral underlying their liens. Relying on the broad auction theory literature …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

Possession, Order And Violent Conflict: Property Rights In A Fragile State, Daniel Fitzpatrick

Daniel Fitzpatrick

Lawyers trained in stable socio-political contexts tend to overlook or underestimate the importance of social order in considering fundamental concepts of property such as possession. This article argues that there are correlations between social order and the interpretive complexity of possessory rules. Efficiency-oriented theories of property suggest a preference for bright-line rules of possession as interpretive simplicity reduces the costs of information transmission to a broad property audience. An alternative approach explains rule complexity by reference to concerns for social justice, including relief against dispossession. The article suggests that the sources of rule complexity in property systems may lie not …

Corporate Leadership And The Unfinished Diversity Movement, Evan M. Roberts Mr.

Evan M Roberts Mr.

This comment explores topics relating to diversity in the board room. It begins by covering the benefits a diverse board brings to firm, focusing on the business case rationales of saving firms money, strengthening core business concepts and corporate governance and increasing shareholder value. Next, the comment explores why, despite the apparent value a divers e board brings to a firm, corporations remain largely homogenized at the highest levels. Current legal, social and economic principles such as tournament theory and labor market externalities appear to shed light on what specific problems diversity advocates must contend with if they hope to …

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

Who Captures The Rents From Unionization? Insights From Multiemployer Pension Plans, D. Bruce Johnsen

D. Bruce Johnsen

From 1945 to 2010 the proportion of private-sector workers covered by collective bargaining agreements declined from 36 percent to a once unthinkable 6.9 percent. The decline raises the question of how well labor unions serve their rank and file. This study addresses the economics of labor unions in an attempt to determine who captures the rents from unionization. Among other things, it examines the generosity of multiemployer defined benefit pension plans for rank-and-file union members and the officer and staff plans for the union that administers them. For given wage, it finds that union officers and staff enjoy pensions and …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

Novel "Neutrality" Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny, Jeffrey Jarosch

Jeffrey Jarosch

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter, too, faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (API). These investigations represent a new attempt to shift the network …