Legal Writing and Research Commons^™

Taking The Offensive: New York City’S Affirmative Suits, Gail Rubin

NYLS Law Review

No abstract provided.

Defending The Historian’S Art: A Response To Paul A. Crotty’S Attack On Fighting For The City, William E. Nelson

NYLS Law Review

No abstract provided.

Should Patent Infringement Require Proof Of Copying?, Mark A. Lemley

Michigan Law Review

Patent infringement is a strict liability offense. Patent law gives patent owners not just the right to prevent others from copying their ideas, but the power to control the use of their idea--even by those who independently develop a technology with no knowledge of the patent or the patentee. This is a power that exists nowhere else in intellectual property (IP) or real property law, but it is a one that patentees have had, with rare exceptions, since the inception of the Republic. In an important paper in the Michigan Law Review, Samson Vermont seeks to change this, arguing …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Review Of Foreign Direct Investment And The Regional Economy, James R. Hines Jr.

Reviews

There is a broad consensus that foreign direct investment (FDI) confers economic advantages on local economies. Jones and Wren simply refuse to share the good feeling about FDI without first processing some numbers. In doing so, they take a detached and serious look at the consequences of foreign direct investment in one area, the northeastern region of England. They have access to excellent data on the regional operations of foreign-owned plants from 1985 to 1999, and use these data to answer important questions about FDI in the region. How large are the benefits that FDI brings, as measured by new …

A Proposed Solution To The Scholarly Communication Crisis, Chad J. Schatzle

Scholarly Works

After reviewing the history and parameters of the scholarly communications crisis, particularly in regard to skyrocketing prices for journals in the natural sciences, the author reviews and rejects previously attempted solutions. He then employs the principles of game theory in proposing a new solution to the crisis.

The Angel Is In The Big Picture: A Response To Lemley, Samson Vermont

Michigan Law Review

An invention within close reach of multiple inventors differs from an invention within distant reach of a lone inventor. The differences between these two archetypes of invention -"reinventables" and "singletons"- remain unexploited under current U.S. law. Should we reform the law to exploit the differences? Mark Lemley and I agree that we should. To date, those economists who have closely examined the issue concur. What are the differences between reinventables and singletons? First, reinventables can be brought into existence with incentives of lower magnitude. This suggests that we can obtain reinventables at a lower price than we currently pay-i.e., with …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Economic Analysis Of Law And Economics, Oren Gazal-Ayal

ExpressO

The academic world is wonderful. Like few other professionals, we can choose what we want to do and what questions we think are important, which in our line of work means choosing what topics we want to research. But what influences our choices? This paper examines what drives scholars to select Law and Economics (L&E) as a topic for research. It does so by implementing the methodology of many L&E papers – by assuming that regulation and incentives matter.

Legal scholars face very different academic incentives in different parts of the world. In some countries, the academic standards for appointment, …

The Economics Of Open Access Law Publishing, Jessica D. Litman

Articles

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

Boilerplate Today: The Rise Of Modularity And The Waning Of Consent, Margaret Jane Radin

Michigan Law Review

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Spectres Of Law & Economics, William H. Widen

Michigan Law Review

There are spectres haunting law and economics - the spectres of G.W.F. Hegel and Jacques Lacan. This is one of the central theses of Professor Jeanne L. Schroeder's challenging new book: The Triumph of Venus, the Erotics of the Market ("Triumph of Venus"). Schroeder uses insights inspired by the teachings of Hegel and the French psychoanalyst, Lacan, to critique some basic assumptiosn made by scholars who use economic ideas to investigate the law and legal institutions - the law and economics ("L&E") practitioners. The book devotes much space to criticism of Judge Posner's vision of law, using it …

Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an …

Saying No To Stakeholding, Jeffrey S. Lehman, Deborah C. Malamud

Michigan Law Review

What if America were to make good on its promise of equal opportunity by [XXX]? That's the bold proposal set forth by Yale law professors Bruce Ackerman and Anne Alstott.... The quotation above is from the Yale University Press announcement describing Bruce Ackerman and Anne Alstott's new book, with one change: we have substituted "[XXX]" for the authors' catchphrase summary of their proposal. What do you think the missing words might be? How would you enable America "to make good on its promise of equal opportunity"? As you ponder that question, you might consider the following feature of the Ackerman/ …

Property Rights In John Marshall's Virginia: The Case Of Crenshaw And Crenshaw V. Slate River Company, 33 J. Marshall L. Rev. 1175 (2000), J. Gordon Hylton

UIC Law Review

No abstract provided.

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

Interest Group Politics And Judicial Behavior: Macey's Public Choice, Jack M. Beermann

Faculty Scholarship

The economic theory of government has lately gained the acceptance in legal circles that it has long enjoyed in political science and economics. The economic theory, also known as "public choice," analyzes and explains government action and private political activity according to the basic assumption of economics, that individuals respond to economic incentives in their environments in a self-interested manner. The economic theory is thus useful descriptively, to explain diverse political phenomena, and prescriptively, to help formulate reform strategy.

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery Katz

University of Michigan Journal of Law Reform

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Derek Bok And The Merger Of Law And Economics, Herbert Hovenkamp

University of Michigan Journal of Law Reform

Both the novelty and the uniqueness of the "law and economics" movement of the last fifteen years have been greatly exaggerated. Law and economics has been with us for at least a half century, in nearly every area of private and public law. The most outspoken protagonists of law and economics admit that economics had a presence in antitrust and regulatory policy long before the work of Ronald Coase, Lester Telser, and others inspired its expanded use in areas of private law, such as tort and contract. But even then, some of those who would make such an admission would …

The Brilliant, The Curious, And The Wrong, Pierre Schlag

Publications

No abstract provided.

Berle: The American Economic Republic, Henry G. Manne

Michigan Law Review

A Review of The American Economic Republic. By Adolf A. Berle

Stein And Nicholson: American Enterprises In The European Common Market: A Legal Profile, Volume 1, James N. Hyde

Michigan Law Review

A Review of American Enterprises in the European Common Market: A Legal Profile, Volume 1. Edited by Eric Stein and Thomas L. Nicholson.

Stein & Nicholson: American Enterprise In The European Common Market: A Legal Profile. Vol. Ii, Sigmund Timberg

Michigan Law Review

A Review of American Enterprise in the European Common Market: A Legal Profile. Vol. II. Volume Two. Edited by Eric Stein and Thomas L. Nicholson.

Hunt: Law And Locomotives: The Impact Of The Railroad On Wisconsin Law In The Nineteenth Century, Alan N. Polasky

Michigan Law Review

A Review of Law and Locomotives: The Impact of the Railroad on Wisconsin Law in the Nineteenth Century. By Robert S. Hunt.

Vaughan: The United States Patent System, Arthur M. Smith

Michigan Law Review

A Review of The United States Patent System. By Floyd L. Vaughan.

Simes & Smith: The Law Of Future Interests, Bertel M. Sparks

Michigan Law Review

A Review of The Law of Future Interests. 4 vols. By Lewis M. Simes and Allan F. Smith.