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Articles 31 - 60 of 101
Full-Text Articles in Law
Reconceptualizing Trespass, Gideon Parchomovsky, Alex Stein
Reconceptualizing Trespass, Gideon Parchomovsky, Alex Stein
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This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the paradigmatic example of property-rule protection: an owner can obtain an injunction against the trespasser and have him removed from her land. The property-rule protection enjoyed by the owner protects her right to exclude others and to set the price for the use of her property. However, the property-rule protection only exists ex ante: it avails only against imminent or ongoing trespasses. Ex post, after a trespass ends, the owner can only recover compensation measured by the market value of the unauthorized use, i.e., the going …
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
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This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
Power, Protocol And Practicality: Communications From The District Court During An Appeal, Catherine T. Struve
Power, Protocol And Practicality: Communications From The District Court During An Appeal, Catherine T. Struve
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No abstract provided.
The Environment And Climate Change: Is International Migration Part Of The Problem Or Part Of The Solution?, Howard F. Chang
The Environment And Climate Change: Is International Migration Part Of The Problem Or Part Of The Solution?, Howard F. Chang
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No abstract provided.
The Viability Of Antitrust Price Squeeze Claims, Erik Hovenkamp, Herbert J. Hovenkamp
The Viability Of Antitrust Price Squeeze Claims, Erik Hovenkamp, Herbert J. Hovenkamp
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A price squeeze occurs when a vertically integrated firm "squeezes' a rival's margins between a high wholesale price for an essential input sold to the rival, and a low output price to consumers for whom the two firms compete. Price squeezes have been a recognized but controversial antitrust violation for two-thirds of a century. We examine the law and economics of the price squeeze, beginning with Judge Hand's famous discussion in the Alcoa case in 1945. While Alcoa has been widely portrayed as creating a "fairness" or "fair profit" test for unlawful price squeezes, Judge Hand actually adopted a cost-based …
Moral Judgment And Moral Heuristics In Breach Of Contract, Tess Wilkinson-Ryan
Moral Judgment And Moral Heuristics In Breach Of Contract, Tess Wilkinson-Ryan
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Most people think that breaking a promise is immoral, and that a breach of contract is a kind of broken promise. However, the law does not explicitly recognize the moral context of breach of contract. Using a series of web-based questionnaires, we asked subjects to read breach of contract cases and answer questions about the legal, financial, and moral implications of each case. Our results suggest that people are quite sensitive to the moral dimensions of a breach of contract, especially the perceived intentions of the breacher. In the first study, we framed the motivation for a contractor's breach as …
Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston
Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston
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This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability that both cause significant inefficiencies and create inevitable tradeoffs between equity and efficiency. A standard result in the economic analysis of international GHG cap and trade schemes is that an allocation of initial permits that favors poor, developing countries (making such countries net sellers in equilibrium) may be necessary not only to further redistributive goals but also the efficiency of the GHG cap and trade scheme. This coincidence of equity and efficiency is, however, unlikely to be realized under more realistic assumptions …
Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller
Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller
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No abstract provided.
Norm Change Or Judicial Decree? The Courts, The Public, And Welfare Reform, Amy L. Wax
Norm Change Or Judicial Decree? The Courts, The Public, And Welfare Reform, Amy L. Wax
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No abstract provided.
The Family Law Doctrine Of Equivalence, Amy L. Wax
The Family Law Doctrine Of Equivalence, Amy L. Wax
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No abstract provided.
Passive Discrimination: When Does It Make Sense To Pay Too Little?, Jonah B. Gelbach, Jonathan Klick, Lesley Wexler
Passive Discrimination: When Does It Make Sense To Pay Too Little?, Jonah B. Gelbach, Jonathan Klick, Lesley Wexler
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Economists have long recognized employers’ ability to construct benefits packages to induce workers to sort themselves into and out of jobs. For instance, to encourage applications from individuals with a highly valued but largely unobservable characteristic, such as patience, employers might offer benefits that patient individuals are likely to value more than other individuals. By offering a compensation package with highly valued benefits but a relatively low wage, employers will attract workers with the favored characteristic and discourage other individuals from applying for or accepting the job. While economic theory generally views this kind of self-selection in value neutral terms, …
Reconceptualizing Human Rights To Challenge Tobacco, Rangita De Silva De Alwis, Richard Daynard
Reconceptualizing Human Rights To Challenge Tobacco, Rangita De Silva De Alwis, Richard Daynard
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No abstract provided.
Time Out, Stephen B. Burbank
Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Dan M. Kahan, David A. Hoffman, Donald Braman
Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Dan M. Kahan, David A. Hoffman, Donald Braman
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This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk …
Citizens Not United: The Lack Of Stockholder Voluntariness In Corporatepolitical Speech, Elizabeth Pollman
Citizens Not United: The Lack Of Stockholder Voluntariness In Corporatepolitical Speech, Elizabeth Pollman
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As the Supreme Court reconsiders prior decisions upholding limits on corporate electioneering from general funds, this Essay suggests that the longstanding concern about the lack of stockholder assent to corporate political speech is more compelling than ever. Patterns of U.S. stockholding have significantly changed in the past several decades so as to heighten the concern and caution against a broad overruling of precedents. Stockholders' ability to sell their securities or pursue a derivative action, and other means of "corporate democracy," do not alleviate the concern. A broad decision in favor of Citizens United could leave even stockholders who carefully screen …
How The Merits Matter: Directors' And Officers' Insurance And Securities Settlements, Tom Baker, Sean J. Griffith
How The Merits Matter: Directors' And Officers' Insurance And Securities Settlements, Tom Baker, Sean J. Griffith
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This Article seeks what may be the holy grail of securities law scholarship—the role of the “merits” in securities class actions—by investigating the relationship between settlements and directors’ and officers’ (D&O) liability insurance. Drawing upon in-depth interviews with plaintiffs’ and defense lawyers, D&O insurance claims managers, monitoring counsel, brokers, mediators, and testifying experts, we elucidate the key factors influencing settlement and examine the relationship between these factors and notions of merit in civil litigation. We find that, although securities settlements are influenced by some factors that are arguably merit related, such as the “sex appeal” of a claim’s liability elements, …
The Pace Of International Criminal Justice, Jean Galbraith
The Pace Of International Criminal Justice, Jean Galbraith
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This article examines how long international criminal cases take in practice. It considers the cases of all 305 individuals charged at six international and hybrid criminal tribunals (as of shortly before this article's publication). Contrary to the conventional wisdom, on average today’s international criminal cases do not take much longer than comparably complex domestic criminal cases, once the defendants are in custody. Nonetheless, international criminal cases may take too long to achieve the goal of helping to reconcile the affected communities – particularly where a community has abruptly transitioned from an abusive old regime to an entirely new one. Where …
United States Competition Policy In Crisis: 1890-1955, Herbert J. Hovenkamp
United States Competition Policy In Crisis: 1890-1955, Herbert J. Hovenkamp
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The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition theory. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem, and as a result many economists were hostile toward the antitrust laws in the early decades of the twentieth century. The ruinous competition debate came to an abrupt end in the early 1930's, when Joan Robinson and particularly Edward Chamberlin developed models that …
Law Across Borders: What Can The United States Learn From Japan?, Eric Feldman
Law Across Borders: What Can The United States Learn From Japan?, Eric Feldman
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No abstract provided.
Lessons Learned: Transferring The European Union's Experience With Energy Efficiency Policy To China, Shelley Welton
Lessons Learned: Transferring The European Union's Experience With Energy Efficiency Policy To China, Shelley Welton
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The European Union (EU) has been at the vanguard of passing forward-thinking energy efficiency policies over the past two decades, although it is still grappling with achieving full implementation of these policies. More recently, China has also been active in making energy efficiency a part of its national energy strategy. However, China has struggled to craft effective energy efficiency laws and to achieve implementation of these laws throughout the country. If successful, the potential for improvements and energy savings in China is tremendous. China has begun to decouple its GDP and its growth in energy consumption over the past twenty …
Symposium: Supreme Court Review, Symposium Foreword, Mitchell N. Berman
Symposium: Supreme Court Review, Symposium Foreword, Mitchell N. Berman
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No abstract provided.
Treatment Differences And Political Realities In The Gaap-Ifrs Debate, William W. Bratton, Lawrence A. Cunningham
Treatment Differences And Political Realities In The Gaap-Ifrs Debate, William W. Bratton, Lawrence A. Cunningham
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No abstract provided.
A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson
A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson
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Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of deadly …
Cause For Concern: Causation And Federal Securities Fraud, Jill E. Fisch
Cause For Concern: Causation And Federal Securities Fraud, Jill E. Fisch
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The Supreme Court’s decision in Dura Pharmaceuticals dramatically changed federal securities fraud litigation. The Dura decision itself said little, but counseled lower courts to fashion new requirements of causation and harm modeled upon common law tort principles. These instructions have led lower courts to craft a series of confusing and inconsistent decisions that incorporate little of the reasoning upon which the common law principles are based. This Article accepts the Dura challenge and examines both common law causation principles and their applicability to federal securities fraud. In so doing, the Article identifies the failure of the federal courts properly to …
Taxation And The Competitiveness Of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds To Invest In The United States?, Michael S. Knoll
Taxation And The Competitiveness Of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds To Invest In The United States?, Michael S. Knoll
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Sovereign wealth funds (SWFs) control vast amounts of capital and have made and are continuing to make numerous large, high-profile investments in the United States, especially in the financial services industry. Those investments in particular and SWFs in general are highly controversial. There is much discussion of the advantages and disadvantages to the United States of investments by SWFs and there is an intense and ongoing debate over what should be the United States’ policy towards investments by SWFs. In the course of that debate, some critics have called upon the US government to abandon its long-held public position of …
Top Cop Or Regulatory Flop? The Sec At 75, Jill E. Fisch
Top Cop Or Regulatory Flop? The Sec At 75, Jill E. Fisch
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In their forthcoming article, Redesigning the SEC: Does the Treasury Have a Better Idea?, Professors John C. Coffee, Jr., and Hillary Sale offer compelling reasons to rethink the SEC’s role. This article extends that analysis, evaluating the SEC’s responsibility for the current financial crisis and its potential future role in regulation of the capital markets. In particular, the article identifies critical failures in the SEC’s performance in its core competencies of enforcement, financial transparency, and investor protection. The article argues that these failures are not the result, as suggested by the Treasury Department Blueprint, of a balkanized regulatory system. Rather, …
Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax
Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax
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The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women’s underperformance …
Strengthening Special Committees, Elizabeth Pollman
Strengthening Special Committees, Elizabeth Pollman
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Special committees make some of the most important decisions facing corporations. High-quality decision-making on these critical issues has become even more urgent in this time of economic volatility and outrage about corporate irresponsibility. Indeed, special committees may be increasingly in the spotlight as the current economic crisis will likely lead to a flood of shareholder litigation and, when credit markets thaw, a wave of strategic transactions. Sometimes a board will create a special committee of just one person to handle a crucial matter. This Article proposes that courts or legislatures firmly establish a preference or requirement that special committees consist …
Mining The Intersections: Advancing The Rights Of Women And Children With Disabilities Within An Interrelated Web Of Human Rights, Rangita De Silva De Alwis
Mining The Intersections: Advancing The Rights Of Women And Children With Disabilities Within An Interrelated Web Of Human Rights, Rangita De Silva De Alwis
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No abstract provided.
Neoclassicism And The Separation Of Ownership And Control, Herbert J. Hovenkamp
Neoclassicism And The Separation Of Ownership And Control, Herbert J. Hovenkamp
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"Separation of ownership and control" is a phrase whose history will forever be associated with Adolf A. Berle and Gardiner C. Means' The Modern Corporation and Private Property (1932), as well as with Institutionalist economics, Legal Realism, and the New Deal. Within that milieu the large publicly held business corporation became identified with excessive managerial power at the expense of stockholders, social irresponsibility, and internal inefficiency. Neoclassical economists both then and ever since have generally been critical, both of the historical facts that Berle and Means purported to describe and of the conclusions that they drew. In fact, however, within …