Law Commons^™

Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

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The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …

Distributional Consequences Of Public Policies: An Example From The Management Of Urban Vehicular Travel, Winston Harrington, Elena Safirova, Conrad Coleman, Sébastien Houde, Adam M. Finkel

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This paper uses a spatially disaggregated computable general equilibrium model of a large US metropolitan area to compare two kinds of policies, “Live Near Your Work” and taxation of vehicular travel, that have been proposed to help further the aims of “smart growth.” Ordinarily, policy comparisons of this sort focus on the net benefits of the two policies; that is, the total monetized net welfare gains or losses to all citizens. While the aggregate net benefits are certainly important, in this analysis we also disaggregate these benefits along two important dimensions: income and location within the metropolitan area. The resulting …

Single Point Of Entry And The Bankruptcy Alternative, David A. Skeel Jr.

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This Essay, which will appear in Across the Great Divide: New Perspectives on the Financial Crisis, a Brookings Institution and Hoover Institution book, begins with a brief overview of concerns raised by the Lehman Brothers bankruptcy about the adequacy of our existing architecture for resolving the financial distress of systemically important financial institutions. The principal takeaway of the first section is that Title II as enacted left most of these issues unanswered. By contrast, the FDIC’s new single point of entry strategy, which is introduced in the second section, can be seen as addressing nearly all of them. The …

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

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The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?"

The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan

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In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky

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Intellectual property systems all over the world are modeled on the one-size-fits-all principle. However important or unimportant, inventions and original works of authorship receive the same scope of protection, for the same period, backed by the same variety of legal remedies. Metaphorically speaking, all intellectual property is equal under the law. This equality comes at a heavy price. The equality principle gives all creators access to the same remedies, even when those remedies create perverse incentives. Moreover, society overpays for innovation by inflicting on society more monopoly losses than are strictly necessary to incentivize production.

In this Article, we propose …

When Should Bankruptcy Be An Option (For People, Places Or Things)?, David A. Skeel Jr.

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When many people think about bankruptcy, they have a simple left-to-right spectrum of possibilities in mind. The spectrum starts with personal bankruptcy, moves next to corporations and other businesses, and then to municipalities, states, and finally countries. We assume that bankruptcy makes the most sense for individuals; that it makes a great deal of sense for corporations; that it is plausible but a little more suspect for cities; that it would be quite odd for states; and that bankruptcy is unimaginable for a country.

In this Article, I argue that the left-to-right spectrum is sensible but mistaken. After defining “bankruptcy,” …

Layers Of Law: The Case Of E-Cigarettes, Eric A. Feldman

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This paper, written for a symposium on "Layers of Law and Social Order," connects the current debate over the regulation of electronic cigarettes with socio-legal scholarship on law, norms, and social control. Although almost every aspect of modern life that is subject to regulation can be seen through the framework ‘layers of law,’ e-cigarettes are distinguished by the rapid emergence of an unusually dense legal and regulatory web. In part, the dense fabric of e-cigarette law and regulation, both within and beyond the US, results from the lack of robust scientific and epidemiological data on the behavioral and health consequences …

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

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Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …

Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach

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Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action. I …

Unplanned Coauthorship, Shyamkrishna Balganesh

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Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. …

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

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For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To discern lessons …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

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The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

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There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

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Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also …