Law Commons^™

Patterns Of Credit Card Use Among Low And Moderate Income Households, Ronald J. Mann

Faculty Scholarship

This chapter uses data from the Federal Reserve Board's Survey of Consumer Finances for 2004 (the "SCF") to examine the penetration of credit cards into LMI markets. The chapter has two purposes. First, I discuss the rise of the modern credit market, emphasizing the segmentation of product lines based on behavioral and financial characteristics of customer groups. Among other things, that trend involves the use of products aimed at LMI households that differ significantly from those aimed at middle-class households. Second, I describe the extent to which LMI households borrow on credit cards, the types of LMI households that borrow, …

Tolerated Use, Tim Wu

Faculty Scholarship

"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …

Experimental Law And Economics, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

This chapter provides a framework for assessing the contributions of experiments in Law and Economics. We identify criteria for determining the validity of an experiment and find that these criteria depend upon both the purpose of the experiment and the theory of behavior implicated by the experiment. While all experiments must satisfy the standard experimental desiderata of control, falsifiability of theory, internal consistency, external consistency and replicability, the question of whether an experiment also must be contextually attentive - in the sense of matching the real world choice being studied - depends on the underlying theory of decision-making being tested …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Supposons Que La Discipline Et La Sécurité N'Existent Pas - Rereading Foucault's Collége De France Lectures (With Paul Veyne), Bernard E. Harcourt

Faculty Scholarship

We have come to know well and deploy easily the Foucauldian terms discipline and sécurité (what we now call governmentality), especially as a result of Michel Foucault's 1978 and 1979 lectures at the College de France. What we know less well, I contend, is how to critique them – discipline and sécurité, that is – the way that Foucault critiqued the terms folie, délinquance, or sexualité.

In this essay, I push further my meditations on punishment and subject discipline and sécurité to the same brutal method that Foucault used in his writings on folie, délinquance, and sexualité. I begin by …

On The Value Of Distributional Equality, Joseph Raz

Faculty Scholarship

The paper returns to the question whether equality in distribution is valuable in itself, or, if you like, whether it is intrinsically valuable. Its bulk is an examination of two familiar arguments against the intrinsic value of distributional equality: the levelling down objection and the objection that equality violates some person-affecting condition, in that its realisation does not improve the lot of people.

Domestic Bonds, Credit Derivatives, And The Next Transformation Of Sovereign Debt, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

Not long ago, financial markets in most poor and middle-income countries were shallow to nonexistent, and closed to foreigners. Governments often had to rely on risky borrowing abroad; the private sector had even fewer options. But between 1995 and 2005, domestic debt in the emerging markets grew from $1 trillion to $4 trillion. In Mexico, domestic debt went from just over 20% of the total government debt stock in 1995 to nearly 80% in 2007. Foreign and local investors are buying. Over the same period, derivative contracts to transfer emerging market credit risk surpassed the market capitalization of the benchmark …

Civil Society's Involvement In Post-Conflict Peacebuilding, Corinne Parver, Rebecca Wolf

Scholarly Articles in Law Reviews & Journals

War is a way of life – in some parts of the world it is an on-going struggle with no end in sight. Years of perpetual conflict have adversely affected the way in which political, socioeconomic, and cultural components of society have developed. Indeed, armed conflict negatively affects all aspects of society: not only does it destroy buildings and societies, but it also leaves surviving individuals and communities with deep wounds that can last a lifetime.

Many efforts have been employed around the world to build peace following a conflict. Some interventions have proven quite successful, while others have not. …

The Espionage Act And National Security Whisteblowing After Garcetti, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies, to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?

As this essay suggests, because of the broad language of the …

Immigrant Remittances, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Remittances, the sending of money from immigrants back to their home countries, are the newest anti-poverty, development activity of the poor to be applauded by international institutions and economists. Exceeding foreign aid and private investment to many developing countries, remittances are being hailed as a new, untapped resource with powerful poverty alleviation and potential development attributes. After presenting the poverty, developmental, and economic characteristics of this new transnational connection between immigrants and their loved ones, as well as the dangerous effects of excessive remittance regulation, the author argues that remittances should be understood as an anti-poverty tool, but not as …

Legitimacy And Cooperation: Why Do People Help The Police Fight Crime In Their Communities?, Tom R. Tyler, Jeffery Fagan

Faculty Scholarship

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one's community. It uses a panel study design and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise …

Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss

Faculty Scholarship

For the second time in a short period, Professors Miles and Sunstein have brought powerful tools of statistical analysis and diligent coding of circuit court of appeals opinions together to demonstrate what the Realists long ago taught us to suspect, that significant elements of judging can be explained in terms of the jurist's political world view – that the tension between law and politics is alive in judicial work as elsewhere and that it is only an aspiration to seek a world of laws and not of men. Elements of their work, though, appear as if in criticism of contemporary …

Land Assembly Districts, Michael A. Heller, Rick Hills

Faculty Scholarship

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Sovereignty As Discourse, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …

Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater

Faculty Scholarship

America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and …

Introduction: The Challenge Of Lionel Tate, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a …

The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache

Scholarly Articles in Law Reviews & Journals

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …

Codes And Codification: United States Law, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

An entry in the forthcoming Oxford Encylopedia of Legal History (Stanley Katz ed.).

Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, Daniel C. Richman

Faculty Scholarship

For almost a decade, law reviews and hearing rooms have resounded with cogent arguments that, for corporations at least, the attorney-client privilege has been chilled, eroded, attacked, or even killed by the federal government's misuse of its bargaining leverage. Yet it is unclear whether this rhetoric is overstated or understated. Given that most federal criminal defendants plead guilty, and that an extraordinarily large percentage of them provide information and testimony against others in order to avoid harsh sentences (or to avoid being charged at all), one could as easily say that the Fifth and Sixth Amendments to the U.S. Constitution …

A Multilateral Solution For The Income Tax Treatment Of Interest Expenses, Michael J. Graetz

Faculty Scholarship

Recent developments – including greater taxpayer sophistication in structuring and locating international financing arrangements, increased government concerns with the role of debt in sophisticated tax avoidance techniques, and disruption by decisions of the European Court of Justice of member states' regimes limiting interest deductions – have stimulated new laws and policy controversies concerning the international tax treatment of interest expenses. National rules are in flux regarding the financing of both inbound and outbound transactions.

Heretofore, the question of the proper treatment of interest expense has generally been looked at from the perspective of either inbound or outbound investment. As a …

"They Say I Am Not An American…": The Noncitizen National And The Law Of American Empire, Christina Duffy Ponsa-Kraus

Faculty Scholarship

The American papers sometimes contain tales about persons who have forgotten who they are, what are their names, and where they live. The Porto [sic] Ricans find themselves in the same predicament as those absent-minded people. To what nationality do they belong? What is the character of their citizenship? ... [l]f since they ceased to be Spanish citizens they have not been Americans [sic] citizens, what in the name ·of heaven have they been?

A House Still Divided, Clare Huntington

Faculty Scholarship

In response to Adam B. Cox, Immigration Law's Organizing Principles, 157 U. PA. L. REv. 341 (2008).

Adam Cox's Immigration Law's Organizing Principles contests the traditional view that immigration law and alienage law – in his terms, "selection rules" and "regulation rules" – are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox's argument, I am not convinced that it will destabilize the …

Our Uniform Patent System, Clarisa Long

Faculty Scholarship

Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?

Rights Over Borders: Transnational Constitutionalism And Guantanamo Bay, David Cole

Georgetown Law Faculty Publications and Other Works

This essay argues that the most profound implications of the Supreme Court’s decision in Boumediene v. Bush may lie not in what it says about the place of law in the war on terror, but in what it reflects about the Supreme Court’s altered conceptions of sovereignty, territoriality, and rights in the globalized world.

Boumediene was groundbreaking in at least three respects. For the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the president on an issue of military policy in a time of armed conflict. Also for the first …

No Reason To Believe: Radical Skepticism, Emergency Power, And Constitutional Constraint, David Cole

Georgetown Law Faculty Publications and Other Works

This essay reviews Eric Posner and Adrian Vermeule’s Terror in the Balance: Security, Liberty, and the Courts, which I consider the most serious, sustained, and thoughtful effort to defend the Bush administration’s aggressive tactics in the war on terror yet written. That the book is ultimately deeply flawed only underscores the failure of the Bush administration’s approach.

Where most historians view with regret the excesses of past security crises, from the criminalization of speech during World War I to the internment of Japanese Americans during World War II, Posner and Vermeule advance the contrarian view that the system worked exactly …

Terror Financing, Guilt By Association And The Paradigm Of Prevention In The ‘War On Terror’, David Cole

Georgetown Law Faculty Publications and Other Works

"Material support" has become the watchword of the post-9/11 era. Material support to groups that have been designated as "terrorist" has been the U.S. government's favorite charge in post-9/11 "terrorism" prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a "war crime."

This essay argues that the criminalization of "material support" to designated "terrorist organizations" is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership …