Law Commons^™

Chevron's Consensus, Evan J. Criddle

Faculty Publications

No abstract provided.

Human Rights And Powerlessness: Pathologies Of Choice And Substance, Makau Mutua

Journal Articles

The human rights corpus is a bundle of pathologies of choice and substance. But these pathologies are ideologically driven and inhere in the human rights movement because of the political choices and biases that are part of the cultural universe of human rights. In particular, the corpus is captive to thin notions of human rights that tend not to challenge deeply embedded social and economic assumptions and systems. The historical narrative of the human rights movement closely parallels the hegemonic rise of the West and hence the movement’s imprisonment in an intellectual project that casts the human being in the …

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Faculty Scholarship

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA),the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act and …

Discounting Dilemmas: Editors' Introduction, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Two developments pose dilemmas for well established discounting techniques: (1) The extremely long time horizons associated with recently prominent environmental policy problems, such as climate change and nuclear waste storage, have made it important to take seriously both benefits to future generations and extreme uncertainties in projecting the returns to policies and future well being. (2) Findings in the burgeoning field of behavioral economics have made it clear that individuals routinely depart significantly from rational prescriptions when making choices over time, thus undermining a bulwark of the discounting approach. These two sets of dilemmas are addressed in a series of …

Private Equity's Three Lessons For Agency Theory, William Wilson Bratton

Articles

It is time to consider the lessons to be learned from the recent boom in private equity buyouts, not least in view of its abrupt termination in the wake of tightened credit. In the past, such inquiries have been undertaken in the context of agency theory and have focused on the buyout's implications for solving the problem of separation of ownership and control. This article reverses the pattern of inquiry to consider the buyout's implications for agency theory, pointing to three lessons. The first lesson addresses agency theory's three-way association among control transfers, governance discipline and hostile takeovers, suggesting that …

Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser

Public Law and Legal Theory Working Papers

Fearsome risks are those that stimulate strong emotional responses. Such risks, which usually involve high consequences, tend to have low probabilities, since life today is no longer nasty, brutish and short. In the face of a low-probability fearsome risk, people often exaggerate the benefits of preventive, risk-reducing, or ameliorative measures. In both personal life and politics, the result is damaging overreactions to risks. We offer evidence for the phenomenon of probability neglect, failing to distinguish between high and low-probability risks. Action bias is a likely result.

An Overview Of The Gloves-Off Economy: Workplace Standards At The Bottom Of America’S Labor Market, Annette Bernhardt, Heather Boushey, Laura Dresser, Chris Tilly

Center for Social Policy Publications

When we talk about the “gloves-off economy,” we are identifying a set of employer strategies and practices that either evade or outright violate the core laws and standards that govern job quality in the U.S. While such strategies have long been present in certain sectors, such as sweatshops and marginal small businesses, we argue that they are spreading. This trend, driven by competitive pressures, has been shaped by an environment where other major economic actors—government, unions, and civil society—have either promoted deregulation or been unable to contain gloves-off business strategies. The result, at the start of the 21st century, is …

Judicial Fact-Finding At Sentencing, Stephanos Bibas

All Faculty Scholarship

This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test. The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into …

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

All Faculty Scholarship

On April 18-19, 2008, the University of Pennsylvania Law School hosted a landmark conference on “The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective.” This conference was the first major event for Penn’s newly established Center for Technology, Innovation, and Competition, a research institute committed to promoting basic research into foundational frameworks that will shape the way policymakers think about technology-related issues in the future. The breakup of AT&T represents an ideal starting point for reexamining the major themes of telecommunications policy that have emerged over the past quarter century. The conference featured a keynote address by …

How Much Can Be Charged For Expert-Witness Appearance Fees In Interstate Water Litigation?, Robert H. Abrams

Journal Publications

No abstract provided.

Vol. 35, No. 13 (December 1, 2008)

Indiana Law Annotated

No abstract provided.

Bourdieu And American Legal Education: How Law Schools Reproduce Social Stratification And Class Hierarchy, Lucille Jewel

Scholarly Works

The American legal profession has long been organized along hierarchical lines, and in many instances, status inequalities between attorneys are based on perceived differences in attorneys' educational credentials. Relying upon the theories of French sociologist Pierre Bourdieu, this essay will discuss how American legal educational institutions operate to reproduce the stratification within the legal profession and within society as a whole.

American law schools are not equalizing institutions that erase all class differences among students to create a profession that awards all of its members a monolithic class status. By allocating professional status based on a system of educational tiers, …

Saving The Wto From The Risk Of Irrelevance: The Wto Dispute Settlement Mechanism As A ‘Common Good’ For Rta Disputes, Henry Gao, Chin Leng Lim

Research Collection Yong Pung How School Of Law

Over the past few decades, Regional Trade Agreements (RTAs) have proliferated globally. Such proliferation of RTAs created a renewed sense of urgency for the WTO to take action in order to avoid the fate of being eclipsed into irrelevance. There are several options for coping with the challenge. Theoretically speaking, the best approach would be to heighten the level of ambition in global trade talks to reduce all trade barriers to zero so that the discriminatory effect created by RTAs could be reduced or even eliminated. In reality, such an approach would be impossible for well-known reasons. The next best …

Reasonable Suspicion Or Real Likelihood: A Question Of Semantics? Re Shankar Alan S/O Anant Kulkarni, Lionel Leo, Siyuan Chen

Research Collection Yong Pung How School Of Law

The law on apparent bias has been mired in some controversy following the High Court decision of Re Shankar Alan s/o Anant Kulkarni, where Sundaresh Menon J.C. seemingly departed from the tentative views of Andrew Phang J.C. (as he then was) in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board on the issue of whether there were any material differences between the “reasonable suspicion of bias” test and the “real likelihood of bias” test, the two formulations of the test for apparent bias that have been variously adopted by different jurisdictions in the common law world. In Tang Kin …

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

Boys, Masculinities And Juvenile Justice, Nancy E. Dowd

UF Law Faculty Publications

Culture and tradition are part of the macrosystem of ideas and beliefs that have a dramatic effect on children and families. One aspect of culture is gender beliefs, values and roles. Feminist analysis has explored the incorporation of gender in a wide range of structures, challenging gender bias and advocating reform of a range of laws, structural systems, and social practices. Masculinities analysis, an outgrowth of feminist analysis that focuses on men as gendered subjects, provides a perspective to consider those areas in which men are disproportionately present either in positions of power and privilege, or in positions of disadvantage. …

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor was initially discharged for being absent without leave. After the first arbitration hearing the Grievor was reinstated with conditions; the same conditions were awarded after a second hearing. The Grievor has now been terminated for breach of one of those conditions - the need to seek immediate medical attention when absent from work due to illness. Although the Grievor became ill Sunday evening, the Union believed that by seeking medical attention on Monday the conditions of the previous Consent Award had been met.

November 29, 2008: The Grace Of Religious Believers, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Grace of Religious Believers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Interview With Joan Pedersen By Andrea L’Hommedieu, Joan S. Pedersen

George J. Mitchell Oral History Project

Biographical Note
Joan (Speed) Pedersen was born on February 11, 1940, in Boston, Massachusetts. Her mother was a legal secretary for an attorney’s office and her father worked in distribution for Firestone Tire. She grew up in West Roxbury, a heavily Irish Catholic part of Boston. She married and moved to Cape Cod, and later to Maine. From 1982-1984, she worked in Senator Mitchell’s field office in Lewiston, Maine, serving constituents. She later worked for Senator William S. Cohen and Representative John E. Baldacci.

Summary
Interview includes discussion of: growing up in Boston in the 1940s and 1950s; work as …

Comments On The Epa’S Advance Notice Of Proposed Rulemaking, Regulating Greenhouse Gas Emissions Under The Clean Air Act, 73 Fed. Reg. 44354 (July 30, 2008)

Environmental Law and Justice Clinic

No abstract provided.

Comments On The Epa’S Advance Notice Of Proposed Rulemaking, Regulating Greenhouse Gas Emissions Under The Clean Air Act, 73 Fed. Reg. 44354 (July 30, 2008), Deborah Nicole Behles

Environmental Law and Justice Clinic

On behalf of Communities for a Better Environment and Bayview Hunters Point Community Advocates the Environmental Law and Justice Clinic at Golden Gate University submits these comments in response to EPA’s Federal Register publication of its Advance Notice of Proposed Rulemaking for Regulating Greenhouse Gas Emissions Under the Clean Air Act, which solicits public comment on how to respond to the U.S. Supreme Court’s decision in Massachusetts v. EPA and how to regulate greenhouse gases under the Clean Air Act. 73 Fed. Reg. 44354 (July 30, 2008).

Summary Of Boucher V. Shaw, 124 Nev. Adv. Op. No. 96, Elham Roohani

Nevada Supreme Court Summaries

No abstract provided.

Summary Of In The Matter Of William M. V. State Of Nevada, 124 Nev. Adv. Op. No. 95, Elham Roohani

Nevada Supreme Court Summaries

Requirement that a juvenile incriminate himself to rebut certification presumption violates the Fifth Amendment right against self-incrimination.

Summary Of Valdez V. State, 124 Nev. Adv. Op. No. 97, Elham Roohani

Nevada Supreme Court Summaries

Cumulative effect of prosecutorial misconduct and the abuse of discretion on the part of the district court through a failure to give the jury a written bifurcation instruction and the resultant effect of juror misconduct warrants reversal warranted reversal of a first-degree murder and attempted murder conviction.

November 25, 2008: The Habit Of Hope, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Habit of Hope“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 25, 2008: Pleasant Grove City V. Summum, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Pleasant Grove City v. Summum“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Evolution Of Property Rights: A Synthetic Overview, James E. Krier

Law & Economics Working Papers Archive: 2003-2009

In this paper I review, extend, and critique two contrasting approaches to the evolution of property rights. The legal literature on the subject is dominated by a conventional approach, which holds a virtual monopoly despite its many shortcomings, and the literature neglects an alternative approach, despite its many virtues (including, but not limited to, the virtue of responding to many of the conventional approach’s deficiencies). The paper provides an overview of both approaches, including a brief intellectual history of each – and should thus inform readers without specialized knowledge of the subject but nevertheless interested in it – and aims …

Amicus Brief In State Of California, Et Al. V. United States Environmental Protection Agency

Environmental Law and Justice Clinic

No abstract provided.

An Ounce Of Prevention: Solving Some Unforeseen Problems With The Proposed Amendments To Rule 56 And The Federal Summary Judgment Process, Adam N. Steinman

NULR Online

No abstract provided.