Social and Behavioral Sciences Commons^™

Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault

Hugh J. Ault

In this Article, Professor Ault begins with an examination of the evolution of treaty principles for the allocation of and restrictions on international taxing jurisdiction. He then focuses on how economically based principles dealing with the taxation of international income affect treaty policy and presents the basic structural provisions involving the taxation of foreign income and foreign investors that emerge from domestically enacted or proposed integration systems. The technical aspects of the actual treaty practices that have been implemented with respect to integration systems are then related to the theoretical discussion. Professor Ault concludes with an examination of the implications …

Solomon's Knot: How Law Can End The Poverty Of Nations, Robert D. Cooter, Hans-Bernd Schaefer

Robert Cooter

Sustained growth depends on innovation, whether it’s cutting-edge software from Silicon Valley, an improved assembly line in Sichuan, or a new export market for Swaziland’s leather. Developing a new idea requires money, which poses a problem of trust. The innovator must trust the investor with his idea and the investor must trust the innovator with her money. Robert Cooter and Hans-Bernd Schäfer call this problem the “double trust dilemma of development.” How nations confront it determines whether their economies grow or stagnate. Nowhere is this problem more acute than in poorer nations. Nations are relatively poor in the modern world …

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

George D. Brown

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and …

Globalization And The Environment: Why All The Fuss?, David A. Wirth

David A. Wirth

The relationship between globalization and environmental policies presents more nuances than the popular paradigm of free trader versus self-serving protectionists, the familiar model of environmentalist battling greedy polluters, or the outmoded view of a progressive multilateral agenda juxtaposed against a parochial, inward-looking domestic one. This piece sets out a structural and analytical framework for addressing the major issues in the field -- including (1) unilateral trade-based measures to protect the environment; (2) science-based tests applied through trade agreements; (3) disciplines on foreign investment that may have a "chilling effect" on environmental regulation; and (4) the relationship between free trade agreements …

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

David A. Wirth

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of precaution as …

The Impact Of "Going Private" On Corporate Stakeholders, Kent Greenfield

Kent Greenfield

As capital markets in the United States increasingly "go private," it is unclear how the privatization of corporate finance will affect non-shareholder stakeholders of firms, most centrally employees, communities, and the environment. Some scholars and public policy experts believe that concern for such stakeholders should not hold any relevance in the discussion of corporate law in general, and thus may be presumed to believe the same about a conversation about privatization. In such a view, these concerns lie outside the realm of corporate governance law; they therefore should be of no great moment in the debate over whether public policy …

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …

Challenges Of Implementing Incentive Auctions In Other Economies: A Mexican Perspective, Víctor Pavón-Villamayor

Víctor Pavón-Villamayor

No abstract provided.

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Negotiability, Property, And Identity, James S. Rogers

James S. Rogers

In this Article, Professor Rogers challenges the assumption that securities transfer law has always been based on negotiable certificates and suggests that the reign of negotiability is a relatively recent, and brief, phase in the long history of investment securities trading. Professor Rogers posits that the difficulties currently facing the law of securities transfers are in large part due to the transition from paper to electronic representations of investments. To place these challenges into perspective, Professor Rogers first surveys the history of securities trading and then examines the theoretical underpinnings of the law of securities transfers.

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

James R. Repetti

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage stockholders, themselves, …

Coal Law From The Old World: A Perspective On Land Use And Environmental Regulation In The Coal Industries Of The United States, Great Britain, And West Germany, Zygmunt J.B. Plater

Zygmunt J.B. Plater

America’s reentry into the Coal Age has been one of the major consequences of the Mideast oil-producing nations’ discovery of their collective marketing power, and in this new emphasis on coal the United States is not alone. Like the United States, many industrialized nations with domestic coal reserves had allowed their coal industries to languish under the influence of low-priced, petroleum based energy economy and are now hastening to strengthen their coal production. Different nations approach the regulation of their resurgent coal industries in varying ways, however, and these differences can be instructive to American observers, particularly as they relate …

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The functional linkages between law and media have long been signficant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public interest …

The Three Economies: An Essay In Honor Of Joseph Sax, Zygmunt J.B. Plater

Zygmunt J.B. Plater

How does one evaluate the important public values and impacts of things that do not have a market price and then integrate them into the fabric of our system of social governance? That question lies within most or all of Joseph Sax's work over the years. The first part of this article represents an attempt to distill some of Joseph Sax's intellectual dimensions, beyond those already chronicled in the comments of other contributors to this symposium, with some linked themes and observations drawn from Sax beyond his writings. The second part, instigated by several of Sax's articles, presents "The Three …

¿Es La Separación De Funciones Un Estándar Justiciable Para El Régimen De Sanciones Administrativas?, Sergio Verdugo Sverdugor@Udd.Cl, José Francisco García

Sergio Verdugo R.

Los autores comentan la sentencia del Tribunal Constitucional chileno, que declara la inaplicabilidad de un precepto del Código Sanitario que le permite al Director del Instituto de Salud Pública solicitar al intendente respectivo la privación de libertad de infractores que no hayan pagado multas cursadas con anterioridad, frente a lo cual no existe un posible control judicial que impida la aplicación efectiva de la medida cárcel. Los autores argumentan que el caso es, en realidad, acerca de la separación de funciones, y que el fallo persigue un equilibrio entre el respeto a los derechos de los regulados y el adecuado …

Avanzando En La Integración De América Latina: Elementos Jurídico - Económicos Para La Construcción De Una Propuesta En Materia De Convergencia, Iván A. Rojas V

Iván Rojas V

Una América Varias Integraciones: Retos De La Integración Latinoamericana Desde La Fragmentación Y La Convergencia., Iván A. Rojas V

Iván Rojas V

Initiatives On Ip Enforcement Beyond Trips: The Anti-Counterfeiting Trade Agreement And The International Medical Products Anti-Counterfeiting Task Force, Christoph Antons, Gabriel Garcia

Dr Gabriel Garcia

No abstract provided.

Technology & Torts: A Theory Of Memory Costs, Nondurable Precautions And Interference Effects, Ben Depoorter

Ben Depoorter

This Article examines the influence of nondurable precaution technologies on the expansion of tort awards. We provide four contributions to the literature. First, we present a general, formal model on durable and non-durable precaution technology that focuses on memory costs. Second, because liability exposure creates interference, we argue that tort law perpetuates the expansion of awards. Third, because plaintiffs do not consider the social costs of interference effects, private litigation induces socially excessive suits. Fourth, while new harm-reducing technologies likely increase accident rates, such technologies also raise the ratio of trial costs to harm, leaving undetermined the overall effect of …

Judicial Expenditures And Litigation Access: Evidence From Auto Injuries, Paul Heaton, Eric Helland

Paul Heaton

Despite claims of a judicial funding crisis, there exists little direct evidence linking judicial budgets to court utilization. Using data on thousands of auto injuries covering a 15-year period, we measure the relationship between state-level court expenditures and the propensity of injured parties to pursue litigation. Controlling for state and plaintiff characteristics and accounting for the potential endogeneity of expenditures, we show that expenditures increase litigation access, with our preferred estimates indicating that a 10% budget increase increases litigation rates by 3%. Consistent with litigation models in which high litigation costs undermine the threat posture of plaintiffs, increases in court …

Corrupção E Judiciário: A (In)Eficácia Do Sistema Judicial No Combate À Corrupção, Ivo T. Gico Jr., Carlos H. R. De Alencar

Ivo Teixeira Gico Jr.

HÁ UMA PERCEPÇÃO GENERALIZADA NO BRASIL DE QUE FUNCIONÁRIOS PÚBLICOS CORRUPTOS NÃO SÃO PUNIDOS. NÃO OBSTANTE, ATÉ O MOMENTO, NÃO HÁ EVIDÊNCIAS EMPÍRICAS QUE APÓIEM ESSA AFIRMAÇÃO E MUITOS ARGUMENTAM QUE SE TRATA DE UMA PERCEPÇÃO EQUIVOCADA DECORRENTE DO AUMENTO DE MEDIDAS ANTICORRUPÇÃO. UMA DAS PRINCIPAIS RAZÕES PARA ESSA NOTÁVEL AUSÊNCIA É A GRANDE DIFICULDADE DE SE IDENTIFICAR CASOS COMPROVADOS DE CORRUPÇÃO PARA, ENTÃO, SE AVERIGUAR SE ELES FORAM OU NÃO PUNIDOS PELO SISTEMA JUDICIAL. ESTE ARTIGO USA O SISTEMA BRASILEIRO DE RESPONSABILIDADE TRÍPLICE COMO UM EXPERIMENTO NATURAL PARA MEDIR O DESEMPENHO DO SISTEMA JUDICIAL CONTRA CORRUPÇÃO. NOSSOS RESULTADOS MOSTRAM …

On Equality: The Anti-Interference Principle, Donald J. Kochan

Donald J. Kochan

This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. …

Duress, Péter Cserne

Péter Cserne

This chapter is to appear in Contact Law and Economics, part of the Elgar Encyclopedia of Law and Economics, 2nd ed. Its purpose is to provide an overview of the economic analyses of contractual duress. The focus is on the distinctive features of the economic perspective on the duress doctrine, as developed in the theoretical literature of law and economics. Along with the results of economic analysis, the legal background and some non-economic theories of duress are also briefly presented.