Law Commons^™

Valuing The Future: Intergenerational Discounting, Its Problems, And A Modest Proposal, Stephen G. Marks

Faculty Scholarship

This article examine how intergenerational investment projects, such as, investments related to global warming, natural resources, energy, etc., should be undertaken. In particular, it examines two popular prescriptions: 1) In making intergenerational investments, policymakers should use a zero discount rate. 2) In making intergenerational investments, policymakers should use the market rate. The article shows that neither of these prescriptions are correct. Indeed, the article suggests that using present-value discounting at all is extremely problematic. Instead, the best we can probably do is to is to adopt a simple algorithm: set certain minimal goals for future generations: clean air, potable water, …

Suitable For Framing: Business Deductions In A Net Income Tax System, David I. Walker

Faculty Scholarship

The federal income tax code includes numerous provisions disallowing or curtailing income tax deductions related to such disparate activities as providing non-performance based compensation to senior corporate executives and business lobbying. The primary claim of this article is that a tendency to mentally frame business deductions as subsidies, often reinforced by rhetoric explicitly framing deductions as subsidies, helps explain these provisions. The traditional “public policy” disallowances directed at lobbying, fines and penalties paid by businesses, and antitrust treble damages respond to an appearance of a taxpayer subsidy that would follow from deduction, despite the fact that it is far from …

Class, Classes, And Classic Race Baiting: What’S In A Definition?, Angela Onwuachi-Willig, Amber Fricke

Faculty Scholarship

Overall, in this Article, we briefly lay out each of our challenges to Sander's arguments in Class in American Legal Education. In Part I, we first address the very problems that Sander's article highlights about the difficulties of defining class and SES, problems that may make classbased affirmative action programs less feasible and effective than Sander suggests. In so doing, we identify what we consider to be defects in Sander's class/SES groupings. We also highlight the complexities around class and race that already exist within law student populations, answering in part the important questions about to whom black law students …

"We Know It When We See It": Intermediary Trademark Liability And The Internet, Stacey Dogan

Faculty Scholarship

The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries — those with a core business model unrelated to infringement — have an obligation to address infringement upon notice, but need not go out of …

Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael C. Harper

Faculty Scholarship

After recounting the legislative history of the Civil Rights Act of 1991, this article reconsiders the legislative compromise that allowed in this Act for capped compensatory and punitive damages as remedies for Title VII violations. This reconsideration is made in light of the Court’s decision in Kolstad v. American Dental Association, granting employers protection from a punitive damage remedy if they can demonstrate a good faith effort to comply with the Act. The article argues that this holding obviates the need for damage cap protection of innocent employers. It does so by enabling employers to shield themselves from the threat …

Property Rules And Defensive Conduct In Tort Law Theory, Keith N. Hylton

Faculty Scholarship

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine?

To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide …

Privacy Rights And Public Families, Khiara Bridges

Faculty Scholarship

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David B. Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

Engaging The Legal Academy In Disaster Response, Davida Finger, Laila Hlass, Anne Sikes Hornsby, Susan S. Kuo, Rachel A. Van Cleave

Faculty Scholarship

This article discusses three models of law school engagement that have been used to respond to natural disasters. The three models discussed are a disaster law clinic, a course on disaster law, and a student-led initiative featuring non-credit, pro bono placements. Each model offers a conceptual approach for integrating community-based, justice-oriented initiatives into academic and clinical teaching. Taken as templates for a more permanent model of engagement in the area of post-disaster law and social justice, these models demonstrate that the legal academy can meet its service obligation to the community while training lawyers to better appreciate the central tenets …

The Puzzle Of Independent Directors: New Learning, Frederick Tung

Faculty Scholarship

In this symposium paper, I discuss and critique some new empirical learning on independent directors.

The independent director has always offered a sort of magic bullet for corporate governance, representing the idealized monitor of executives’ behavior. Yet we corporate law scholars also harbor some ambivalence about the magic of this bullet. As much as we want to trust in the promise of independent directors, no solid empirical evidence exists to suggest that independent directors add value. Moreover, we have seen spectacular failures in the face of independent boards.

How do we account for this disconnect between our intuitions and best …

Does Westlawnext Really Change Everything: The Implications Of Westlawnext On Legal Research, Ronald E. Wheeler

Faculty Scholarship

WestlawNext, Thomson Reuters’ newest electronic research service, has been around for over a year now. Ron Wheeler shares his thoughts on how this service may impact various aspects of legal research, and he suggests further study and research are necessary to fully evaluate and comprehend the system.

Poverty Tourism And The Problem Of Consent, Kyle Powys Whyte, Evan Selinger, Kevin Outterson

Faculty Scholarship

Is it morally permissible for financially privileged tourists to visit places for the purpose of experiencing where poor people live, work, and play? Tourism associated with this question is commonly referred to as 'poverty tourism.' While some poverty tourism is plausibly ethical, other practices will be more controversial. The purpose of this essay is to address mutually beneficial cases of poverty tourism and advance the following positions. First, even mutually beneficial transactions between tourists and residents in poverty tourism always run a risk of being exploitative. Second, there is little opportunity to determine whether a given tour is exploitative since …

The Freedom Of Health, Abigail Moncrieff

Faculty Scholarship

What would have happened if the Patient Protection and Affordable Care Act (PPACA) really had authorized government “death panels” that would decide whether an elderly patient could get treatment? Leaving aside commerce clause and other constraints particular to Congress, would that kind of direct healthcare rationing be a constitutional exercise of governmental power in the United States? I think not. I argue here that an emergent substantive due process constraint would invalidate such an exercise; direct rationing of that kind would violate a constitutional “freedom of health” that is nascent in Supreme Court jurisprudence. Based on that logic, I argue …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Have Truth And Reconciliation Commissions Helped Remediate Human Rights Violations Against Women? An Analysis Of The Past And Formula For The Future, Peggy Maisel

Faculty Scholarship

Truth and Reconciliation Commissions (TRCs) have investigated human rights violations and abuses in a wide range of countries and communities over the last thirty-five years. Created by people who believe finding truth through an examination of the past is necessary to build social and political trust, the goal of these processes has been to make findings and recommendations in order to strengthen or aid the transition to democracy, reduce conflict and create a basis for long term reconciliation, facilitate some form of transitional or restorative justice, and begin the process of change needed to avoid similar human rights violations in …

The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel, Natalie Roman

Faculty Scholarship

For the legal system to operate effectively, it must address problems arising from the absence of needed laws, or, if enacted, of laws that have been drafted poorly or are not being implemented in a fair and just manner. Since law schools are generally part of a larger university community, they are uniquely placed to serve as laboratories to find solutions to such problems, perhaps nowhere more so than in their legal clinics. The latter have in fact often played the role of legal innovators, but their contributions to the law and therefore to society at large have been little …

Pay For Banker Performance: Structuring Executive Compensation For Risk Regulation, Frederick Tung

Faculty Scholarship

Excessive risk taking by firm managers did not originate with the Financial Crisis of 2007-08. Though bankers had special incentives to take big risks in the period before the Crisis, the incentive effects of equity-based compensation have been understood for some time. Among other things, equity compensation tends to induce greater risk taking by aligning managers’ risk preferences with those of equity holders. Longstanding government guaranties of bank liabilities additionally served to intensify bankers’ risk taking incentives.

I propose to ameliorate this gambler’s incentive with a new approach to compensation at the largest banks, one that explicitly accounts for the …

Arbitration In Autumn, William W. Park

Faculty Scholarship

Often invoked as a metaphor for decline and decay, autumn also carries a sense of robust maturity bringing fruitful harvest and new beginnings. The season’s double symbolism evokes rival visions of arbitration today. Some observers see a golden age of cheap and cheerful proceedings as replaced by a costly complexity that fails arbitration’s promise of coherent and efficient dispute resolution. On closer scrutiny, however, arbitration reveals itself as having arrived at its autumn not in the sense of decay, but rather with vital maturity. Productive exchanges among the various stakeholders in the process serve to refine the counterpoise among accuracy, …

Introduction To 'New Governance And The Business Organization', Cristie Ford, Mary Condon

All Faculty Publications

In the fall of 2010, the University of British Columbia Faculty of Law welcomed a group of scholars from around the world to consider the state, and evolution, of responsive regulation, in both theory and practice. The occasion was the presence of Dr. John Braithwaite as UBC Law’s inaugural Fasken Martineau Senior Visiting Scholar. This paper is an introductory essay to the special edition of the UBC Law Review devoted to the workshop’s resulting work products. The volume begins with John Braithwaite’s own reflections on the responsive regulation project. On one level, the set of essays that follows his can …

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

All Faculty Publications

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. This article examines why the Japanese Supreme Court …

Political Protest, Mass Arrests, And Mass Detention: Fundamental Freedoms And (Un)Common Criminals, Debra Parkes, Meaghan Daniel

All Faculty Publications

“No Justice. No Peace.” The mass arrest and detention of over 1,105 people during the Toronto G20 summit in June 2010, including author Meaghan Daniel, prompted reflection on the connections between justice and peace and in particular, between peaceful protest, policing, detention and the justice system. The record breaking weekend of mass arrests and temporary detention of people described as “innocent bystanders” and “peaceful protestors” provoked an ongoing conversation about the criminalization of protest. It is the authors’ hope to extend this conversation beyond these (un)common criminals to the “every day” processes of criminalization and imprisonment that go largely unquestioned …

Constitutional Precedents In Japan: A Comment On The Role Of Precedent, Shigenori Matsui

All Faculty Publications

Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not law to be applied by the courts. However, since judges have followed the precedent of the Supreme Court most of the time, these precedents have a de facto binding power even though they are not legally binding. In this Comment, the author focuses on constitutional law precedents to illustrate …

Copyright Publication: An Empirical Study, Deborah R. Gerhardt

Faculty Publications

No abstract provided.

Board Diversity And Proxy Disclosure, Thomas Lee Hazen, Lissa Lamkin Broome

Faculty Publications

No abstract provided.

Communication Breakdown: Reviving The Role Of Discourse In The Regulation Of Employee Collective Action, Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

In Or Out Of Mortgage Trouble? A Study Of Bankrupt Homeowners, Melissa B. Jacoby, Daniel T. Mccue, Eric M. Belsky

Faculty Publications

No abstract provided.

Grounding Conversations On Sexuality And Asian Law, Holning S. Lau

Faculty Publications

No abstract provided.

Smith, Christian Legal Society, And Speech-Based Claims For Religious Exemptions From Neutral Laws Of General Applicability, William P. Marshall

Faculty Publications

No abstract provided.

Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall

Faculty Publications

No abstract provided.