Law Commons^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Equidad Pensional Y Salario Base. La Interpretación Judicial Como Base De Inequidad, Fernando Castillo Cadena

Fernando Castillo Cadena

This paper addresses the current problem of interpretation of what should be understood as basic salary for the settlement of the pension bond type A mode 2, for members who move to individual savings scheme, showing how interpretations of the Constitutional Court and the Labor Appeal Chamber of the Supreme Court do not conform to the financial and economic content the law provides, and therefore, create problems of pension equity.

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

Propuestas Para Ampliar El Acceso A Los Bienes Públicos En Argentina Estableciendo El Necesario Balance Entre Derechos De Propiedad Intelectual Y Dominio Público, Maximiliano Marzetti

Maximiliano Marzetti

Aplicamos un sistema de propiedad intelectual nacido en los albores de la revolución industrial a una sociedad del conocimiento global. Un régimen de escasez artificial choca contra la abundancia digital. Es hora de reequilibrar el balance perdido entre medios y fines, a la altura de los tiempos digitales que corren.

Coase Minus The Coase Theorem--Some Problems With Chicago Transaction Cost Analysis, Pierre Schlag

Pierre Schlag

In law as well as economics, the most well-known aspect of Coase’s “The Problem of Social Cost,” is the Coase Theorem. Over the decades, that particular notion has morphed into a crucial component of Chicago law and economics—namely, transaction cost analysis. In this Article, I deliberately bracket the Coase Theorem to show that “The Problem of Social Cost” contains far more interesting and unsettling lessons—both for law as well as for economics. Indeed, while Coase’s arguments clearly target the Pigouvian attempts to “improve on the market” through government correctives, there is, lurking in those arguments, a much more profound critique …

An Economic Approach To Collective Rights And Their Means Of Supply: The Case Of Right To "The Enjoyment Of A Healthy Environment" And The Right To "Rational Management And Use Of Natural Resources" [En Español], Daniel A. Monroy

Daniel A Monroy C

This paper has two main objectives (i) Demonstrate that the defining characteristic of collective rights related to non-excludable of the benefits derived from the "means" of supply and the material "objects" of rights, is consistent with the microeconomic defining characteristic of so-called "public goods" and "commons " (together we call these as non-excludable resources). On the other hand, (ii) Demonstrate that when we analyze the collective rights as non-excludable resources this aims important omitted challenges by traditional legal doctrine related with the adequate supply of collective rights, this happens because the problems of the -Olsonian- logic of collective action. For …

Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky

Alex Stein

This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …

Airline Network Effects And Consumer Welfare, Daniel L. Rubinfeld, Mark Israel, Bryan Keating, Bobby Willig

Daniel L. Rubinfeld

In this paper we develop a methodology to quantify the value to consumers of the non-price characteristics of airline networks. Our research demonstrates that analyses that ignore the quality effects associated with expanded airline networks generate incorrect findings and thus should not form the basis for policy decisions regarding airline transactions. Appropriately incorporating quality effects into quality-adjusted fares reverses the conclusion that hub airports yield lower consumer welfare due to generally higher fares than other airports. From the perspective of consumer welfare in this industry, to evaluate potential airline mergers, alliances, slot swaps or other transactions, one should not focus …

Efficient Breach In The Common European Sales Law (Cesl), Wenqing Liao

Wenqing Liao

In the classic economic theory, it is suggested that contract law should be structured in such a way that efficient breaches (i.e. those increasing social welfare) would be promoted. The default remedy of expectation damages was justified on this cognition. Nowadays, more and more suspects and critiques are raised against the so called simple efficient breach model. The aim of this paper is to re-sketch the theory of efficient breach and to compare the consequences resulting from economic analysis with the remedy rules of the Common European Sales Law (CESL). It is proposed that the doctrine of efficient breach has …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Presentation Slides - “Built To Suit” As An Instrument For The Business Constrution Or Renovation In The Contemporary Era: Definition, Characteristics And The Real Estate Receivables Certificates (Rerc)”, Claudia Ribeiro Pereira Nunes

Claudia Ribeiro Pereira Nunes

The construction or renovation is a high economic value investment to the entrepreneur. In many cases, this values disbursement, without prompt financial returns required to carry out the establishment construction or restructuring, hinders its own growth. Justified this work, therefore, implies the need to understand the Built to Suit and its relation to the Real Estate Receivables Certificates (RERC).The aim of this essay is to understand Built to Suit in Contemporary Era. The specific objectives are, after a brief historical analysis of the contract: (i) to outline the definition, (ii) submit their characteristics and special clauses, and (iii) understand the …

Should The Commercial Landlord Have A Duty To Mitigate Damages After The Tenant Abandons?: A Legal And Economic Analysis, David Crump

David Crump

When a commercial tenant abandons the premises, the landlord’s costs continue. Does the landlord, then, have the burden of mitigating damages for a suit against the tenant? Two different rules apply in different states. Some states, including Pennsylvania, put the burden of mitigation on the breaching party: the commercial tenant. Other states, however, put the burden entirely on the non-breaching party: the landlord. Texas follows this latter approach, placing the burden solely on the innocent party and not on the breaching party. The Texas rule, which puts the burden of mitigation on the non-breaching commercial landlord, has serious disadvantages. First, …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Lawyering In The Shadow Of Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement – based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in …

"Shut Up. Pay More. This Is What You Voted For." Why You Don't See Me At San Francisco's Hall Of Justice., David D. Butler

David D. Butler

This 2,285 essay combines California's often violent history with European and American high and low culture to explain my decision to leave San Francisco in the 1970's and to study and practice law in other states. At the time, I was platflorm man (operator) on the 30 Stockton electric trolley through South of Market, the Financial District, Chinatown, Pacific Heights, and the Marina. Nevertheless, at the time the Nation of Islam had at least one armed group, the Zebra killers, murdering Whites, often slowly with machetes. I joined the White, Middle-Class, Taxpaying majority in their diaspora to safer places. My …

Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance For Business Entities, Eric C. Chaffee

Eric C. Chaffee

This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition—i.e., the unconscious recognition that a specific action is good, evil, or morally neutral—may have a useful role to play in making legal compliance decisions for business entities.

Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized role of intuition in moral decision making …

Goliath Versus Goliath In High-Stakes Mbs Litigation, David J. Reiss, Bradley T. Borden

David J Reiss

The loan-origination and mortgage-securitization practices between 2000 and 2007 created the housing and mortgage-backed securities bubble that precipitated the 2008 economic crisis and ensuing recession. The mess that the loan-origination and mortgage-securitization practices caused is now playing out in courts around the world. MBS investors are suing banks, MBS sponsors and underwriters for misrepresenting the quality of loans purportedly held in MBS pools and failing to properly transfer loan documents and mortgages to the pools, as required by the MBS pooling and servicing agreements. State and federal prosecutors have also filed claims against banks, underwriters and sponsors for the roles …

Laudatio: Ronald Coase, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen G. Marks

Stephen G Marks

Twenty-five years ago, in 1989, Professor Robert Cooter, writing in the Virginia Law Review, proposed changes in the law that would facilitate the development of a market in unmatured tort claims. On this twenty-fifth anniversary of this groundbreaking paper, it is fitting to reexamine this proposal, speculate on why it has not been adopted, and to explore whether revisions in the proposal might lead to greater legislative acceptance. In this paper I reexamine the proposal as to its likely intended and unintended effects. This article argues that, for such a market in unmatured tort claims to work, three modifications must …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

A Market For Tax Compliance, Walter E. Afield Iii

Walter E Afield III

It is becoming increasingly clear that, due to political realities and budgetary constraints, the IRS is going to have to attempt to enforce the tax laws by doing more with less. Current enforcement efforts have yielded a tax gap (i.e., the difference between the amount of taxes that should be paid and the amount that are collected) of roughly $450 billion annually. Faced with this task, one of the steps that the IRS has recently taken is to try to improve the quality in services performed by paid tax preparers, a group that historically has been subject to little IRS …

Licensure Of Health Care Professionals: The Consumer's Case For Abolition, Charles H. Baron

Charles H. Baron

While state medical licensure laws ostensibly are intended to promote worthwhile goals, such as the maintenance of high standards in health care delivery, this Article argues that these laws in practice are detrimental to consumers. The Article takes the position that licensure contributes to high medical care costs and stifles competition, innovation and consumer autonomy. It concludes that delicensure would expand the range of health services available to consumers and reduce patient dependency, and that these developments would tend to make medical practice more satisfying to consumers and providers of health care services.

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Moving Money: International Financial Flows, Taxes, Money Laundering & Transparency, Richard Gordon, Andrew P. Morriss

Andrew P Morriss

Recent publicity over enormous estimates of “missing” wealth and the use of sophisticated tax strategies by companies like Apple, Google, and Starbucks have produced a demand that the wealthy pay a “fair” amount of tax regardless of their compliance with the letter of tax laws. In particular, the Tax Justice Network’s claim that $21-$32 trillion of “hidden” wealth remains untaxed has garnered considerable attention. In this paper we argue that these claims rest on poor data and analysis and mistakes about how financial transactions work. We further argue that the disputes are about fundamentally conflicting visions of how financial transactions …

Confucianism And Antitrust: China's Emerging Evolutionary Approach To Anti-Monopoly Law, Thomas J. Horton

Thomas J. Horton

In August, 2007, the People’s Republic of China, through its National People’s Congress, enacted its Anti-Monopoly Law, which took effect in August, 2008. This article discusses the historical, cultural, and philosophical values that have helped to shape and influence China’s current AML. Rather than following the United States and Europe, China appears to be charting its own course in interpreting and enforcing its competition laws. Based upon China’s history, culture, and Confucian ethics and morals, this article forecasts that China’s future AML enforcement will be based upon social, moral, and ethical considerations, as well as economic ones. This article concludes …

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …

Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein

Alex Stein

No abstract provided.

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

The Problem Of Nonprofit Executive Pay?: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker

Brian D. Galle

Nonprofit organizations suffer from agency problems that are similar to or perhaps even more severe than those observed at for-profit companies. As a result, one might expect the executive pay setting process in the two sectors to reflect similar deficiencies. This Article explains why the managerial power theory that was developed to help explain for-profit executive pay is plausibly applicable to nonprofits. More importantly, this Article offers new evidence based on data from a large panel of colleges and universities collected across a nine year period that supports the idea that potential stakeholder outrage plays a role in limiting nonprofit …

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order to …