Law Commons^™

Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah

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The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court …

Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam E. Gilles

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It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …

Size Matters (Or Should) In Copyright Law, Justin Hughes

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American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

Trusting Trustees: Fiduciary Duties And The Limits Of Default Rules, Melanie B. Leslie

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No abstract provided.

Disparity: The Normative And Empirical Failure Of The Federal Guidelines, Albert Alschuler

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Correspondence: Testing Minimalism: A Reply, Cass R. Sunstein

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Reforming The Federal Sentencing Guidelines Misguided Approach To Real-Offense Sentencing, David Yellen

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Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

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A Government Of Limited Powers, Carl E. Schneider

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Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …

Robert Dahl's How Democratic Is The American Constitution: An Introduction, With Notes On The Electorial College, Michael Herz

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Hard Cases And The Politics Of Righteousness, Carl E. Schneider

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The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …

Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright

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Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S., Malvina Halberstam

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European Communities - Conditions For The Granting Of Tariff Preferences To Developing Countries, Alan O. Sykes, Gene M. Grossman

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European Communities - Anti-Dumping Duties On Imports Of Cotton-Type Bed Linen From India - Recourse To Article 21.5 Of The Dsu By India Paper, Alan O. Sykes, Gene M. Grossman

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United States - Definitive Safeguard Measures On Imports Of Certain Steel Products, Alan O. Sykes, Gene M. Grossman

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Revealing Options, Lee Anne Fennell

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Legal scholars are beginning to explore how the options template, borrowed from finance, can be applied to legal problems outside the realm of finance. This Article uses the options framework to add a new, intermediate entitlement form to the property rule/liability rule schema pioneered by Guido Calabresi and Douglas Melamed. Building on a fascinating but underused literature on self-assessed valuation mechanisms, I propose an entitlement form that would require entitlement holders to create options for others (or for their future selves). These "entitlements subject to self-made options," or "ESSMOs," are capable of powerfully and elegantly addressing one of the most …

Solving The Due Process Problem With Military Commissions, Nicholas Stephanopoulos

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Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin

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Guaranteed payments are payments made by a partnership to a partner for services performed in his partnership capacity or for the use of capital to the extent that the amount of the payment is not determined by reference to the partnership's income. In addition, some distributions made by a partnership in liquidation of a partner's interest in the partnership are treated as guaranteed payments. A guaranteed payment constitutes ordinary income to the partner, and the partnership is allowed a deduction for the payment unless it constitutes a capital expenditure. While guaranteed payments typically are made in cash, it is possible …

Stand By Your First Amendment Values - Not Your Ad, Nicholas Stephanopoulos

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Preemption Of State Spam Laws By The Federal Can-Spam Act, Roger Ford

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Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

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This Article presents a framework for interpreting Congress's September 18, 2001Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism.The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under …

Book Review (Reviewing Paul Brand, Kings, Barons, And Justices: The Making And Enforcement Of Legislation In Thirteenth-Century England (2003)), Richard H. Helmholz

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Takings, Commons, And Associations: Why The Telecommunications Act Of 1996 Misfired, Richard A. Epstein

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Joint efforts by two or more parties can be achieved either through voluntary cooperation, through state coercive activity under some version of the takings power, or by the creation of some form of commons. Network industries, such as telecommunications, cannot usually work by the former, and thus require some level of state coercion. The choice of the method of coercion is, however, critical because the use of the eminent domain power does not work well when applied to a high frequency of low level transactions that are difficult to price and monitor. In contrast, the creation of an interconnection obligation, …

Political Trials In Domestic And International Law, Eric A. Posner

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Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …

Public Versus Private Enforcement Of International Economic Law: Standing And Remedy, Alan O. Sykes

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This paper develops a theory of the rules regarding standing and remedy in international trade and investment agreements. Regarding investment agreements, the paper argues that a credibLe government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices is required and that a private right of action for money damages is the best way to make such a commitment. In trade agreements, by contrast, importing nations have commitments that are best viewed as government to government rather than government to firm. The parties to trade agreements can enhance their mutual political welfare by declining to …

Judicial Impediments To Legislating Equality For Same-Sex Couples In The European Union, Bruce Carolan

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In the United States, the state and federal courts often has been the first port of call for activists hoping to advance the cause of same-sex couples. State courts, in particular, have ruled on occasion that guarantees of equal rights or due process contained in state constitutions require recognition of same-sex marriage or civil unions. These court decisions, in turn, have sparked a legislative backlash. Legislators and voters have rejected these court decisions by amending state constitutions to limit the rights of same-sex couples. The European Union represents, in some ways, the mirror image of the United States experience. The …

The Value Of Institutions And The Values Of Free Speech, Dale Carpenter

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Should the First Amendment pay attention to the setting in which speech occurs, giving more protection to some institutions than to others? The very suggestion is a heresy. The First Amendment, to a degree unknown elsewhere in American law, has been characterized by a certain kind of blindness. It has largely been blind to the popularity of the speech involved, blind to whether the speech is favored or disfavored by the government, and blind to the identity of the speaker. On the other hand, some institutions - the professional media, libraries, and universities, for example - are especially good at …

Public Choice Defended (Reviewing Gerry Mackie, Democracy Defended (2003)), Saul Levmore

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No abstract provided.

The Expressive Power Of Adjudication, Richard H. Mcadams

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This article provides a causal explanation of adjudicative compliance that is distinct from both the court's threat of sanctions and its institutional legitimacy. The new mechanism for compliance is the power of adjudicative expression. The theory of "expressive adjudication" arises from a previously neglected synergy among three expressive concepts in game theory -correlated equilibria, focal points, and signals. The article identifies the circumstances in which adjudicative expression can, by itself, influence the behavior of existing disputants and of future potential disputants. In each case, ambiguity in the relevant facts or the concepts underlying intentional and spontaneous order can cause a …