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Full-Text Articles in Law
Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge
Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge
Faculty Scholarship
Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.
Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …
Imperfect Property Rights, James Bessen
Imperfect Property Rights, James Bessen
Faculty Scholarship
In theory, property rights allow markets to achieve Pareto optimal allocations. But the literature on contracting largely ignores what happens when property rights are imperfectly defined and enforced. Although some models include weak enforcement or poorly defined rights or "anticommons," this paper develops a general model that includes all of these possibilities. I find that combinations matter: Policy prescriptions to remedy individual imperfections are sometimes inappropriate under other conditions. For example, stronger penalties for violating rights can decrease Pareto efficiency, contrary to a common view. Also, collective rights organizations, such as patent pools, sometimes worsen problems of overlapping claims.
Evaluating The Economic Performance Of Property Systems, James Bessen
Evaluating The Economic Performance Of Property Systems, James Bessen
Faculty Scholarship
How should the economic performance of property systems be evaluated? Benefit-cost analysis is widely used to evaluate non-market based regulation when prices are not available. Market prices provide better information for property systems, but market prices are not necessarily socially optimal when property rights are imperfect. This paper discusses two practical approaches to evaluating the performance of property systems, one based on an analysis of institutional performance, the other based on measuring incentives. As an illustration, I show how these approaches might be used to evaluate the US patent system.
Lincoln's Populist Sovereignty: Public Finance Of, By, And For The People, Timothy A. Canova
Lincoln's Populist Sovereignty: Public Finance Of, By, And For The People, Timothy A. Canova
Faculty Scholarship
No abstract provided.
Ad Law Incarcerated, Giovanna Shay
Ad Law Incarcerated, Giovanna Shay
Faculty Scholarship
This Article examines one part of the legal regime administering "mass incarceration" that has not been a focus of legal scholarship: prison and jail policies and regulation. Prison and jail regulation is the administrative law of the "carceral state," governing an incarcerated population of millions, a majority of whom are people of color. The result is an extremely regressive form of policy-making, affecting poor communities and communities of color most directly. This Article proceeds in three parts. Part I first sketches the history of court involvement in prison reform, explaining that prison litigation made institutions more bureaucratic and increased the …
The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival
The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival
Faculty Scholarship
With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers …
Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt
Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt
Faculty Scholarship
The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It …
Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss
Legal Frameworks And Institutional Contexts For Public Consultation Regarding Administrative Action: The United States, Peter L. Strauss
Faculty Scholarship
Written for a forthcoming book on e-governance and e-democracy, this essay summarizes the current state of play in electronic rulemaking in the United States. It thus focuses on a context in which the use of electronic consultation by “executive branch” actors engaged in policy-making has been developing for over a decade, and has reached a point of considerable, although not final maturity. Initially developed haphazardly, agency-by-agency, it is now (albeit with friction in the gears) moving towards a centralized regime. The practice is rarely consultative in the full sense the book as a whole will address; while the public is …
Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss
Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss
Faculty Scholarship
This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her …
Rulemaking And The American Constitution, Peter L. Strauss
Rulemaking And The American Constitution, Peter L. Strauss
Faculty Scholarship
A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …
Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt
Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt
Faculty Scholarship
What work do the categories “the free market” and “regulation” do for us? Why do we incarcerate one out of every one hundred adults? These seemingly unrelated questions, it turns out, are deeply interconnected. The categories of free and regulated markets emerged as an effort to make sense of irreducibly individual phenomena – unique forms of market organization. In the process, these categories helped shape our belief that the economic realm is characterized by natural order and equilibrium, and that the only legitimate sphere of government intervention is policing and punishment. The consequences have been devastating: first, in distorting and …