Law Commons^™

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

United States V. Bean: Shoveling After The Elephant?, Pannal A. Sanders

ExpressO

Thomas Bean’s felony conviction in Mexico implicated provisions of federal law that preclude certain persons, including specified felons, from owning or trading in firearms and ammunition which have been transported in interstate commerce. 18 USC Sec. 922. Affected persons can seek relief from the federal firearms disability by invoking procedures established in 18 USC Sec. 925(c) under the Dept of Treasury, Director of Alcohol, Tobacco and Firearms (“ATF”). Beginning in 1992, Congress has enacted provisions annually in the ATF’s appropriations laws that ban it from investigating or acting upon Sec. 925(c) applications from individuals. Section 925(c) contains provisions for judicial …

Liability Rules For Constitutional Rights: The Case Of Mass Detentions, Eugene Kontorovich

ExpressO

Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, …