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Full-Text Articles in Law

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson Dec 2006

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's ...


Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu Jan 2006

Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu

Faculty Scholarship

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But ...


Taxes That Work: A Simple American Plan, Michael J. Graetz Jan 2006

Taxes That Work: A Simple American Plan, Michael J. Graetz

Faculty Scholarship

In November 2005, the President's Advisory Panel on Tax Reform, appointed by President Bush to suggest options for reforming and simplifying the federal tax code, unanimously recommended two alternative plans: a "simplified income tax" (SIT) and a "growth and investment tax" (GIT). The two plans shared much in common. For example, both would: (1) Reduce the top marginal tax rate-to 33% under the SIT plan and 30% under GIT plan; (2) eliminate the alternative minimum tax (AMT); (3) replace the earned income tax credit (EITC) and refundable child credits with a "work credit"; (4) replace personal exemptions, the standard ...


Waging War Against Terror: An Essay For Sandy Levinson, Philip Chase Bobbitt Jan 2006

Waging War Against Terror: An Essay For Sandy Levinson, Philip Chase Bobbitt

Faculty Scholarship

Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda's global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states ...


Enlisting The Tax Bar, David M. Schizer Jan 2006

Enlisting The Tax Bar, David M. Schizer

Faculty Scholarship

Tax shelters have proliferates in the United States not only because of financial innovation, the globalization of capital markets, the increasing complexity of our tax system, the inadequacy of tax penalties, the lack of political support for tax reform, and the growing popularity of textualist interpretation – all factors that have attracted considerable attention in the literature. Shelters also derive from a structural imbalance in our tax system that has not been adequately explored: In important respects, the private tax bar outmatches its counterpart in government. This imbalance is one of sheer numbers, of access to information, and, at least in ...


Intellectual Property, Innovation, And Decentralized Decisions, Tim Wu Jan 2006

Intellectual Property, Innovation, And Decentralized Decisions, Tim Wu

Faculty Scholarship

In 1945, Fredrick Hayek described the problem of economic development as "a problem of the utilization of knowledge not given to anyone in its totality." Hayek's insight has unexpected relevance for what has emerged as the central question in modern intellectual property and related fields: When might the assignment of property rights have anti-competitive consequences? The traditional, yet central, economic answer to this question emphasizes a tradeoff between incentives created by property grants and resulting higher prices and deadweight losses. Under this model intellectual property grants are desirable to the extent that they encourage new product development at a ...


After Confidentiiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon Jan 2006

After Confidentiiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

Recent business scandals and the regulatory responses to them raise basic questions about the role of the business lawyer. Lawyers were major participants in Enron and in similar controversies over corporate disclosure. Lawyers have also been key players in the corporate tax shelter industry. In both instances, their conduct has prompted federal regulations that repudiate to an unprecedented degree the bar's traditional understanding of its structure and obligations.

The provision of the Sarbanes-Oxley Act of 2002 mandating "up-the-ladder" reporting by public corporation counsel was the first federal statute in American history to regulate lawyers directly and broadly. The second ...


The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon Jan 2006

The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon

Faculty Scholarship

Insurance companies have come to play a role in professional responsibility compliance that rivals that of courts and disciplinary agencies. The insurers, however, depart from the judicial perspective of the traditional enforcement agencies. Instead, they take the risk management perspective that Anthony Alfieri describes.

I agree with Alfieri that risk management poses real dangers of cynicism and Babbittry. Nevertheless, I also see more upside than he does. The new perspective is valuable, not just as a strategy for attracting student attention, but as an antidote to real and basic deficiencies in mainstream ethics teaching and traditional professional practice. In this ...


The Regulation Of Labor And The Relevance Of Legal Origin, David E. Pozen Jan 2006

The Regulation Of Labor And The Relevance Of Legal Origin, David E. Pozen

Faculty Scholarship

This paper critiques The Regulation of Labor, an empirical study recently published by Juan C. Botero, Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer in the Quarterly Journal of Economics. The Regulation of Labor extends these authors' comparative research to the realm of employment, collective-relations, and social-security laws, and finds that legal origin is a stronger predictor of all of these than political or economic variables, with common law associated with the lowest levels of regulation. While these findings are suggestive and help deepen the case for regulatory complementarity, the methodological weaknesses are severe. This paper explores the ...


Enlisting The Tax Bar, David M. Schizer Jan 2006

Enlisting The Tax Bar, David M. Schizer

Faculty Scholarship

Tax shelters and aggressive planning derive in part from a structural imbalance in our tax system that has not been adequately explored: In important respects, the private tax bar outmatches their counterparts in government. Although a strong policy case can be made for remedying this mismatch, this Article emphasizes two institutional barriers that complicate any solution, rooted in the political economy of taxation and the economics and professional norms of the legal profession. First, although it would be enormously helpful to dramatically increase the staffing levels and pay of government tax administrators, this is a politically daunting task. Second, a ...


Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger Jan 2006

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use ...


Cataclysmic Liability Risk Among Big Four Auditors, Eric L. Talley Jan 2006

Cataclysmic Liability Risk Among Big Four Auditors, Eric L. Talley

Faculty Scholarship

Since Arthur Andersen's implosion in 2002, policymakers have been encouraged with ever increasing urgency to insulate the auditing industry from legal liability. Advocates of such insulation cite many arguments, but the gravamen of their case is that the profession faces such significant risk of cataclysmic liability that its long term viability is imperiled. In this Essay, I explore the nature of these claims as a legal, theoretical, and empirical matter. Legally, it is clear that authority exists (within both state and federal law) to impose liability on auditing firms for financial fraud, and courts have been doing so sporadically ...


Boris I. Bittker, Michael J. Graetz Jan 2006

Boris I. Bittker, Michael J. Graetz

Faculty Scholarship

I first met Boris Bittker on January 21, 1977, in Miami. There are only a handful of people whom you remember first meeting. For me, Boris was one. For the past twenty or so years, I have been lucky enough to count him as a friend. He was always Boris to me, never Borie. I was a new friend – too much his junior to be so informal. Our phone would ring. "Mike, it's Borie," he would say. "Hello Boris!" I would respond.

The conference where Boris and I met was a gathering of about thirty tax law professors and ...


Edwin S. Cohen, Michael J. Graetz Jan 2006

Edwin S. Cohen, Michael J. Graetz

Faculty Scholarship

This is not the first time I have spoken to honor Edwin S. Cohen. I spoke at two of his retirements – at least – and in the Rotunda at both his 75th and 80th birthday celebrations. Each time, and on many other occasions over the years when I have spoken about tax law or policy in his presence, I would always steal a glance at Eddie, looking for that twinkle in his eyes, hoping to bring a smile to his face, or even an outright giggle. Today, I know I will still look, as I will for years to come, though ...


Institutional Coordination And Sentencing Reform, Daniel C. Richman Jan 2006

Institutional Coordination And Sentencing Reform, Daniel C. Richman

Faculty Scholarship

Generally, treatments of prosecutorial discretion in the sentencing context tend to focus on its challenge to horizontal equity and judicial discretion within sentencing regimes. The goal in this symposium piece is to reverse the arrow, and, using an internal executive perspective, start looking at how sentencing regimes and judicial enforcement of those regimes can be used as tools for the hierarchical control of line prosecutors. It first considers a problem arising out of ostensibly successful regulation within a prosecutor's offices - in this case, an effort to control plea bargaining in New Orleans. It then considers issues relating to regulation ...


The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott Jan 2006

The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law encourages parties to make relation-specific investments by enforcing the contracts the parties make, and by denying liability when the parties had failed to agree. For decades, the law has had difficulty with cases where parties sink costs in the pursuit of projects under agreements that are too incomplete to enforce, and where one of the parties prefers to exit rather than pursue the contemplated project. The issue whether to award the disappointed party any remedy has divided a large number of courts over many years. The judicial uncertainty arises, we claim, because the questions why parties make such ...


Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller Jan 2006

Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller

Faculty Scholarship

The modem debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia, which restored capital punishment after its brief constitutional ban following Furman v. Georgia in 1972. In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders. Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in ...


The Supreme Court, The Solicitor General, And Bankruptcy: Bfp V. Resolution Trust Corporation, Ronald J. Mann Jan 2006

The Supreme Court, The Solicitor General, And Bankruptcy: Bfp V. Resolution Trust Corporation, Ronald J. Mann

Faculty Scholarship

This chapter tells the story behind BFP v. Resolution Trust Corporation. I see BFP as a case that pitted relatively plain statutory language supporting the debtor-in-possession against policy interests supporting a secured creditor. I argue that an important explanation for the Supreme Court's decision to favor policy over the language of the statute was its perception of a need to protect the availability of non-bankruptcy remedies for secured creditors. Accordingly, I situate my discussion of BFP in the context of the role that the federal government has played in the Supreme Court's cases interpreting the Bankruptcy Code. In ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2006

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov Jan 2006

The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov

Faculty Scholarship

Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare-enhancing. This Article looks at the less-appreciated darker side of social norms. It combines the analysis of the modern sophisticated tax planning techniques with the existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to ...


Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig Jan 2006

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York City, 1989-2000, Bernard E. Harcourt, Jens Ludwig

Faculty Scholarship

The pattern of misdemeanor marijuana arrests in New York City since the introduction of "broken windows" policing in 1994 is remarkable. By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached 51,267 for the city, up 2,670 percent from 1,851 arrests in 1994. In 2000, misdemeanor MPV arrests accounted for 15 percent of all felony and misdemeanor arrests in New York City and 92 percent of total marijuana-related arrests in the State of New York. In addition, the pattern of arrests disproportionately targeted African-Americans and Hispanics.

In this paper, we ...


A Case For Civil Marriage, Carol Sanger Jan 2006

A Case For Civil Marriage, Carol Sanger

Faculty Scholarship

There has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes.

Although I am a Contract ...


Income Tax Discrimination And The Political And Economic Integration Of Europe, Alvin C. Warren, Michael J. Graetz Jan 2006

Income Tax Discrimination And The Political And Economic Integration Of Europe, Alvin C. Warren, Michael J. Graetz

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of EU member states as violating the guarantees of the European constitutional treaties of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant European income tax legislation, because no European political institution has the power to enact such legislation without unanimous consent from the member states. Under the treaties, the member states have retained a veto power over income tax legislation. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of ...


The Rose Theorem?, Michael Heller Jan 2006

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent ...


Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius Jan 2006

Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller argue that bad institutions located in the importer’s country deter international trade because they enable economic predators to steal and extort rents at the importer’s border. We complement this research and show how good institutions located in the exporter’s country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions affect international as well as domestic transaction costs in complex and ...


The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens Jan 2006

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as ...


Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann Jan 2006

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This Article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the Article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the ...


"Contracting" For Credit, Ronald J. Mann Jan 2006

"Contracting" For Credit, Ronald J. Mann

Faculty Scholarship

On a recent day, I used my credit cards in connection with a number of minor transactions. I made eight purchases, and I paid two credit card bills. I also discarded (without opening) three solicitations for new cards, balance transfer programs, or other similar offers to extend credit via a credit card. Statistics suggest that I am not atypical. U.S. consumers last year used credit cards in about 100 purchasing transactions per capita, with an average value of about $70. At the end of the year, Americans owed nearly $500 billion dollars, in the range of $1,800 for ...


Constitutional Lessons From Europe, George A. Bermann Jan 2006

Constitutional Lessons From Europe, George A. Bermann

Faculty Scholarship

Given his range of interests, a tribute to Francis Jacobs could appropriately address just about any area of contemporary legal concern. But Francis Jacobs is one whose writings on and off the bench have, for an American, been especially illuminating, due to his unique capacity to translate fundamental issues of European constitutional law into terms that we can grasp. And so, notwithstanding the quantity of writing on the recent constitutional adventure of the European Union ("EU") that has already accumulated, I add yet one more set of reflections on this theme in Francis Jacobs' honor, this time on the possible ...


Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman Jan 2006

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In ...