Public Law and Legal Theory Commons^™

Peter Mieszkowski And The General Equilibrium Revolution In Public Finance, James R. Hines Jr.

Articles

The importance of understanding the implications of general equilibrium is by now abundantly clear to researchers analyzing public fi nance issues. What is perhaps less apparent is that this was not always so. The study of public fi nance was radically transformed during the 15 years between 1959 and 1974 by the pioneering efforts of a small number of leading scholars, notably including Peter Mieszkowski. Thanks to their efforts, the analysis of applied problems in public finance moved from partial equilibrium to general equilibrium, providing the methods and insights that characterize modern public economics. The transformation began with the publication …

Can Bundled Discounting Increase Consumer Prices Without Excluding Rivals?, Daniel A. Crane, Joshua D. Wright

Articles

Since we abhor suspense, we will quickly answer the question our title poses: No. As a general matter, bundled discounting schemes lower prices to consumers unless they are predatory—that is to say, unless they exclude rivals and thereby permit the bundled discounter to price free of competitive restraint. The corollary of this observation is that bundled discounting is generally pro-competitive and pro-consumer and should only be condemned when it is capable of excluding rivals. We pose and answer this question because it is at the heart of Section VI of Professor Elhauge’s provocative draft article which is the subject of …

Linkline's Institutional Suspicions, Daniel A. Crane

Articles

Antitrust scholars are having fun again. Not so long ago, they were the poor, redheaded stepchildren of the legal academy, either pining for the older days of rigorous antitrust enforcement or trying to kill off what was left of the enterprise. Other law professors felt sorry for them, ignored them, or both. But now antitrust is making a comeback of sorts. In one heady week in May of 2009, a front-page story in the New York Times reported the dramatic decision of Christine Varney-the Obama Administration's new Antitrust Division head at the Department of Justice-to jettison the entire report on …

Obama's Antitrust Agenda, Daniel A. Crane

Articles

Antitrust law is back in vogue. After years in the wilderness, antitrust enforcement has reemerged as a hot topic in Washington and in the legal academy. In one heady week inMay of 2009, a frontpage story in the New York Times reported the dramatic decision of Christine Varney —theObama administration’s new AntitrustDivision head—to jettison the entire report onmonopolization offenses released by the Bush JusticeDepartment just eightmonths earlier. In a speech before the Center for American Progress, Varney announced that the Justice Department is “committed to aggressively pursuing enforcement of Section 2 of the Sherman Act.” As if to prove that …

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

The Copyright Revision Act Of 2026, Jessica D. Litman

Articles

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115.' So, I need to have all of those …

The United Nations, The European Union, And The King Of Sweden: Economic Sanctions And Individual Rights In A Plural World Order, Daniel Halberstam, Eric Stein

Articles

In the last decade, economic sanctions have become a major instrumentality of the UN Security Council in the struggle against terrorism and lawless violence endangering peace. It is not surprising that innocents would be ensnarled, along with culprits, in the nets of the so-called "smart" or "targeted" sanctions, which are directed against named individuals and groups (as opposed to delinquent States). In such rare cases, as the individual concerned searches for a legal remedy, significant issues of fundamental human rights may arise at the levels of the international, regional, and national legal orders. This essay explores these issues. After examining …

A Reply To Pierre, Robin West

Georgetown Law Faculty Publications and Other Works

In this article, the author responds to Pierre Schlag's statement that legal scholarship is dead and that live scholarship, by contrast to the stuff we produce, aims for truths that are both important and hard to uncover—the latter is what requires discipline, and the former distinguishes scholarship from ordinary observation. The “life” in lively scholarship lies partly in the quest but also in the substantial payoff: growth, when we have been convinced of something important and previously unknown; change, when we see the world differently because of it; restoration, when old truths are revalidated; breath itself, when new insights pry …

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …

Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …

The History Of The New York City Law Department: Fighting For The City By William E. Nelson, Ross Sandler

Articles & Chapters

No abstract provided.

Comparative Law By Numbers? Legal Origins Thesis, Doing Business Reports, And The Silence Of Traditional Comparative Law, Ralf Michaels

Faculty Scholarship

The legal origins thesis -- the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law -- has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments.

The first …

Subsidizing Charitable Contributions: Incentives, Information, And The Private Pursuit Of Public Goals, David M. Schizer

Faculty Scholarship

The charitable deduction has enjoyed relatively little support in the legal academy. Many commentators have asked what it adds to the tax system and, as critics such as Stanley Surrey and Paul McDaniel have observed, the deduction obviously does not itself collect tax revenue. Defenders respond that the deduction helps to measure income and to keep taxpayers from inefficiently substituting leisure for work, but these points are, of course, contested. Instead of revisiting debates about what the deduction adds to the tax system, this Article focuses on the broader question of what it adds to the pursuit of public goals. …

Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii

Scholarly Works

If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …

Re-Reading Weber In Law And Development: A Critical Intellectual History Of "Good Governance" Reform, Chantal Thomas

Cornell Law Faculty Publications

The "Weberianism" of the modern age derives from the influence of three theoretical concepts in Weber's work. First, Weber described the development of "logically formal rationality" in governance as central to the rise of Western capitalist democracy. Second, Weber posited that Protestant religious ethics had helped to promote certain economic behaviors associated with contemporary capitalism. Third, Weber identified the rise of bureaucratic governance, as the primary means of realizing logically formal rationality, as distinctly modern.

This essay examines the influence of these basic insights on discourse on legal reform in developing countries. The prioritization of legal and institutional reforms to …

Reasonable Suspicion Or Real Likelihood: A Question Of Semantics? Re Shankar Alan S/O Anant Kulkarni, Lionel Leo, Siyuan Chen

Research Collection Yong Pung How School Of Law

The law on apparent bias has been mired in some controversy following the High Court decision of Re Shankar Alan s/o Anant Kulkarni, where Sundaresh Menon J.C. seemingly departed from the tentative views of Andrew Phang J.C. (as he then was) in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board on the issue of whether there were any material differences between the “reasonable suspicion of bias” test and the “real likelihood of bias” test, the two formulations of the test for apparent bias that have been variously adopted by different jurisdictions in the common law world. In Tang Kin …

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

The Academic Doctorate In Law: A Vehicle For Legal Transplants?, Gail J. Hupper

Journal of Legal Education

No abstract provided.

Brochure: The Public/Private International Law Colloquium, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

The Public/Private International Law Colloquium

No abstract provided.

Taking Distribution Seriously, Robert C. Hockett

Cornell Law Faculty Working Papers

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing.

To attend systematically to the inter-translatability of maximization language on …

Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

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What Interests Are Served When Academic Law Library Directors Are Tenured Law Faculty? An Analysis And Proposal, Spencer L. Simons

Journal of Legal Education

No abstract provided.

Lawyers As Quasi-Public Actors, W. Bradley Wendel

Cornell Law Faculty Publications

This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument …

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

Exploring The Impact Of The Marriage Amendments: Can Public Employers Offer Domestic Partner Benefits To Their Gay And Lesbian Employees?, Tiffany C. Graham

Working Paper Series

The article focuses on an issue that is shaping up to be the new front in the same-sex marriage wars: whether applying the terms of the more broadly-constructed amendments to public employers will bar them from offering domestic partner benefits to their gay and lesbian employees. The first part of the article offers an overview of domestic partner benefits plans and discusses the manner in which they are currently being threatened by the more broadly-constructed marriage amendments. The second part takes a close look at the litigation in National Pride at Work v. Michigan. This case represents the first time …

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

University of Michigan Journal of Law Reform

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …

Truth And Innocence Procedures To Free Innocent Persons: Beyond The Adversarial System, Tim Bakken

University of Michigan Journal of Law Reform

Through innocent pleas and innocence procedures, this Article urges a fundamental change to the adversarial system to minimize the risk that factually innocent persons will be convicted of crimes. The current system, based on determining whether the prosecution can prove guilt beyond a reasonable doubt, results in acquittals of guilty persons when evidence is sparse and convictions of innocent persons when evidence is abundant. It might be easier philosophically to accept that guilty persons will go free than to know that some innocent persons will be convicted and imprisoned, especially in the American justice system where erroneous jury verdicts based …

Temporary Accidents?, M. Elizabeth Magill

Michigan Law Review

In Part I of this Review, I will summarize Croley's book, focusing on his powerful critique of public choice theory and the alternative account that he develops and defends. Part II assesses the book, arguing that Croley is successful in demonstrating agency autonomy but less successful in showing that either administrator motivations or the administrative process tend to make agencies regulate in welfare-enhancing ways. As is often the case, the critique is more powerful than the construction of the alternative account. Even so, Croley's book should alter debates over the possibility of good government by placing the agency and how …

Legal Education And Training In England And Wales: Back To The Future?, Andrew Boon, Julian Webb

Journal of Legal Education

No abstract provided.