Law Commons^™

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Inequality And Uncertainty: Theory And Legal Applications, Matthew D. Adler, Chris William Sanchirico

Faculty Scholarship

"Welfarism" is the principle that social policy should be based solely on individual well-being, with no reference to 'fairness" or "rights." The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attentioncall this the "ex ante/ex post" problem. The problem arises from the combination of uncertainty-an inevitable feature of real policy choice-and a social preference for equality. If the policymaker is not a utilitarian, but rather has a "social welfare function" that is …

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship

"Welfare polls" are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists.This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and …

Weasel Numbers, Reza Dibadj

Reza Dibadj

In an attempt to cabin the open-endedness of weasel words, traditional law and economics purports to offer certainty. This article, however, argues that this scholarship deeply misunderstands modern welfare economics and suggests, contrary to the usual economic denigrations of public bureaucracy, that a robust public administrative state is essential to improving social welfare. The article first argues that the ¿wealth maximization¿ standard of traditional law and economics is fundamentally flawed. It then addresses issues central to the economic literature of social welfare, which have yet to make their way meaningfully into the law and economics discourse. The shift in welfare …

Social Welfare Reform: An Analysis Of Germany's Agenda 2010 Labor Market Reforms And The United States' Personal Responsibility And Work Opportunity Reconciliation Act (Prwora) Of 1996, Jennifer Allison

Jennifer Allison

This 2006 student comment presents a historical view of the social welfare systems in the United States and Germany. It then explains and analyzes recent large-scale reforms made to each country's social welfare system - the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 in the United States, which profoundly impacted the availability of welfare benefits to poor Americans, and Germany's Agenda 2010 campaign, which, in accordance with the recommendations of the Hartz Commission, reformed Germany's legislative system of providing benefits to the long-term unemployed.

Blocking Legal Evolution And Paying The Price: Property And Conflict In The Nigerian Highlands, Karol C. Boudreaux

ExpressO

This article examines current high levels of violent conflict in Plateau State in central Nigeria using an economic property-rights analysis that draws on the work of Harold Demsetz, Robert Cooter, Terry Anderson and Fred McChesney.

The thesis of the article is that this wide-spread violent conflict over resource use/access is tied, in important ways, to the passage of federal legislation in Nigeria that nationalized land. This legislation, I contend, blocked the continued evolution of customary land-law norms that had evolved to meet a variety of land-use needs and that had a relatively low-cost and transparent indigenous dispute resolution mechanism.

The …

Book Review: Fairness Vs. Welfare, Matthew D. Adler

Faculty Scholarship

Reviewing Louis Kaplow & Steven Shavell, Fairness versus Welfare (2002)

Capitalism, Social Marginality, And The Rule Of Law's Uncertain Fate In Modern Society, Ahmed A. White

Publications

The rule of law is liberalism's key juridical aspiration. Yet its norms, centered on the principles of legality and legal generality, are being compromised all over the political and legal landscape. For decades, the dominant explanation of this worrying condition has focused mainly on the rise of the welfare state and its apparent incompatibility with the rule of law. But this approach, though shared by a politically diverse range of scholars, is outdated and misconceives the problem. A central function of the modem state has always been to prevent capitalism's inherent tendencies toward social marginalization from devolving into general social …

Gödel, Kaplow, Shavell: Consistency And Completeness In Social Decision-Making, Giuseppe Dari Mattiacci

Chicago-Kent Law Review

The recent debate on what criteria ought to guide social decision-making has focused on consistency: it has been argued that criteria contradicting one another—namely, welfare and fairness—should not be simultaneously employed in order for policy assessment to be consistent. This Article raises the related problem of completeness—that is, the question of whether or not a set of consistent criteria is capable of providing answers to all social decision problems. If not, as it is suggested might be the case, then the only way to decide otherwise undecidable issues is to simultaneously employ both welfare and fairness, which implies a certain …

Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick

Chicago-Kent Law Review

Functional law and economics, which draws its influence from the public choice school of economic thought, stands as a bridge between the strictly positivist and normative approaches to law and economics. While the positive school emphasizes the inherent efficiency of legal rules and the normative school often views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law's ability to remedy those failures on …

Cost-Benefit Analysis, Static Efficiency And The Goals Of Environmental Law, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Social Welfare, Human Dignity, And The Puzzle Of What We Owe Each Other, Amy L. Wax

All Faculty Scholarship

Proponents of work-based welfare reform claim that moving the poor from welfare to work will advance the goals of economic self-reliance and independence. Reform opponents attack these objectives as ideologically motivated and conceptually incoherent. Drawing on perspectives developed by luck egalitarians and feminist theorists, these critics disparage conventional notions of economic desert, find fault with market measures of value, debunk ideals of autonomy, and emphasize the pervasiveness of interdependence and unearned benefits within free market societies. These arguments pose an important challenge to justifications usually advanced for work-based welfare reform. Reform proponents must concede that no member of society can …

Legal Transitions: Some Welfarist Remarks, Matthew D. Adler

Faculty Scholarship

This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens …

Authors' Welfare: Copyright As A Statutory Mechanism For Redistributing Rights, Tom Bell

Tom W. Bell

Copyright exhibits means and ends remarkably similar to those of social welfare programs. Yet discussions about copyright do not tend to echo discussions about welfare. This paper examines that interesting contrast. It begins by comparing social welfare policy to copyright policy, uncovering several material parallels. Both welfare and copyright primarily aim to correct the market's failure to sufficiently support a particular class of beneficiaries. Both encourage rights-based claims to the entitlements that they create, too. The welfare system and the copyright system each uses statutory mechanisms to redistribute rights - rights to wealth in the first instance, rights to chattels …

Whatever Happened To G.I. Jane?: Citizenship, Gender, And Social Policy In The Postwar Era, Melissa E. Murray

Michigan Journal of Gender & Law

In this Article, it is argued that the GI Bill is consistent with the social welfare policies of the New Deal period, in particular the Social Security Act of 1935, and so should be examined within the analytical framework established by scholars like Linda Gordon and Theda Skocpol in their studies of the Social Security Act's social welfare programs. Although the Bill is gender-neutral on its face, it was framed by normative assumptions about military participation and work that ensured that it was socially understood to benefit male veterans.

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

Articles

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

The Effects Of Partial Privatization Of Social Security Upon Private Pensions, Kathryn L. Moore

Law Faculty Scholarly Articles

Social Security does not provide retirement income in a vacuum. Rather, commentators often refer to our national retirement income system as a three legged stool, with Social Security representing one of the legs and employer sponsored pension plans and individual savings representing the other two legs. Because changes in one leg of the stool are likely to have a direct impact on the other two legs, policymakers must not consider Social Security changes in isolation, but should take account of their effect on employer-sponsored pensions and individual savings. This Article analyzes how one of the most popular proposals, partial privatization, …

Maximum Vertical Price Fixing From Albrecht Through Brunswick To Khan: An Antitrust Odyssey, James M. Fesmire

Seattle University Law Review

The article attempts to sort out some of this confusion caused by the legal journey from Albrecht to Khan by portraying that long road as a successful example of the antitrust injury doctrine's ability to bring substantive antitrust law into compliance with the goals of antitrust. First, the article examines how the existence of successive monopoly provides an incentive for maximum vertical price fixing and how maximum vertical price fixing leads to an increase in consumer welfare. Second, it examines manufacturer alternatives to vertical price restraints, finding them less attractive in terms of social welfare. Third, the article analyzes other …

Accommodating The Learning Disabled Student On Campus, Oren R. Griffin

Articles, Chapters in Books and Other Contributions to Scholarly Works

Each year nearly 19 million persons matriculate at American colleges and universities as undergraduate or graduate students. A substantial segment of these students are disabled. For disabled students matriculating through American higher education institutions, a tremendous battle is being waged as to the educational experience afforded those students with learning disabilities." Lawyers, educators and students are embroiled in a complex tug-of war that will have a lasting impact on higher education. This article examines some of the legal issues that will undoubtedly challenge those seeking to strike a balance between hard-line advocates for disabled students and educational professionals required to …

Redistribution Under The Current Social Security System, Kathryn L. Moore

Law Faculty Scholarly Articles

Arguably the most successful program of the modern welfare state, Social Security has been enormously successful in lifting the elderly out of poverty. Thirty years ago, almost 30% of the elderly were in poverty, a poverty rate that was more than twice as high as the rate for the population as a whole. Today, in contrast, only about 12% of the elderly are subject to poverty, a rate that is about the same as the rest of the adult population.

This Article describes how the current system redistributes income. The Article does not attempt to develop a mathematical model to …

Beyond Efficiency And Procedure: A Welfarist Theory Of Regulation, Matthew D. Adler

Faculty Scholarship

Normative scholarship about regulation has been dominated by two types of theories, which I term "Neoclassical" and "Proceduralist." A Neoclassical theory has the following features: it adopts a simple preference-based view of well-being, and it counts Kaldor-Hicks efficiency as one of the basic normative criteria relevant to the evaluation of regulatory programs. A Proceduralist theory is concerned, not solely with the quality of regulatory outcomes, but also with the governmental procedures that produce these outcomes: it gives intrinsic significance to the procedures that regulatory bodies follow. (One example of a Proceduralist theory is the civic republican theory of regulation advanced …

Implementing Cost-Benefit Analysis When Preferences Are Distorted, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure and that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of distorted preference. A person's preferences are distorted when his or her satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may …

Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri

Faculty Publications

The recent national efforts at reforming the welfare system and new research on the connection between teen pregnancy and statutory rape have led many states to enact stricter laws against statutory rape and to increase the enforcement of existing laws. Punitive statutory rape laws are being viewed more and more as a mechanism for shrinking the welfare rolls by reducing teen pregnancy. Rigel Oliveri documents the resurgence of statutory rape law and enforcement and explores the ramifications it will have on teen parents. In particular, Oliveri approaches the issue from several analytical frameworks, discussing arguments for consent-based standards, the privacy …

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White

Publications

No abstract provided.

Reforming Labor Law For The New Century, Lance Liebman

Faculty Scholarship

The two articles that follow are the first published fruit of a conversation that was initiated in 1998 under the auspices of "Labor Law Reform for Developed Countries in the 21st Century," several years of conferences leading to the May 2000 Tokyo Conference of the International Industrial Relations Association. This project has had generous support from the Center for Global Partnership of the Japan Foundation and from the Parker School of Foreign and Comparative Law at Columbia Law School.

The participants have been labor law professors from Europe, Japan, and the United States. The group has focused its research and …

Exit And Voice In The Age Of Globalization, Eyal Benvenisti

Michigan Law Review

The "globalization" of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a "race to the top," an international "race to the bottom," spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, …

Agenda: Pro Bono And Service Obligations: Group #7

Fordham Law Review

No abstract provided.

New York's State Constitution In National Context, Robert F. Williams

Touro Law Review

No abstract provided.

A Citizen Lawyer's Moral, Religious, And Professional Responsibility For The Administration Of Justice For The Poor, Mary Ann Dantuono

Fordham Law Review

No abstract provided.