Legal Theory Commons^™

Ripstein, Rawls, And Responsibility, Stephen R. Perry

All Faculty Scholarship

No abstract provided.

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

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Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …

Rules, Principles, And The Accounting Crisis In The United States, William W. Bratton

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The Sarbanes-Oxley Act and the Securities Exchange Commission move too quickly ·when they prod the Financial Accounting Standards Board, the standard setter for US GAAP, to move immediately to a principles-based system. Priorities respecting reform of corporate reporting in the US need to be ordered more carefully. Incentive problems impairing audit performance should be solved first through institutional reform insulating the audit from the negative impact of rent-seeking and solving adverse selection problems otherwise affecting audit practice. So long as auditor independence and management incentives respecting accounting treatments remain suspect. the US reporting system holds out no actor plausibly positioned …

Sovereign Debt Reform And The Interest Of Creditors, William W. Bratton, G. Mitu Gulati

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No abstract provided.

Constitutional Decision Rules, Mitchell N. Berman

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No abstract provided.

Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman

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In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially …

The Conceptual Jurisprudence Of The German Constitution, William Ewald

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No abstract provided.

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

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In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

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No abstract provided.

Regionalization Of International Criminal Law Enforcement: A Preliminary Exploration, William W. Burke-White

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No abstract provided.

Enron, Sarbanes-Oxley And Accounting: Rules Versus Principles Versus Rents, William W. Bratton

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No abstract provided.

Immigration And The Workplace: Immigration Restrictions As Employment Discrimination, Howard F. Chang

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No abstract provided.

Justification And Excuse, Law And Morality, Mitchell N. Berman

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Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs …

Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker

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No abstract provided.

An International Constitutional Moment, William W. Burke-White, Anne-Marie Slaughter

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No abstract provided.

Don't Abandon The Model Penal Code Yet! Thinking Through Simons's Rethinking, Kimberly Kessler Ferzan

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No abstract provided.

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

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The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

Method And Principle In Legal Theory, Stephen R. Perry

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No abstract provided.

Human Rights, Civil Wrongs And Foreign Relations: A "Sinical" Look At The Use Of U.S. Litigation To Address Human Rights Abuses Abroad, Jacques Delisle

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No abstract provided.

Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea

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This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, …

Reframing Impunity: Applying Liberal International Law Theory To An Analysis Of Amnesty Legislation, William W. Burke-White

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No abstract provided.

Berle And Means Reconsidered At The Century's Turn, William W. Bratton

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No abstract provided.

State Accountability For Violations Of Intellectual Property Rights: How To "Fix" Florida Prepaid (And How Not To), Mitchell N. Berman

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No abstract provided.

Introduction To The Symposium On Conflicts Of Rights, Claire Oakes Finkelstein

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No abstract provided.

What's So Special About American Law?, William Ewald

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No abstract provided.

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

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No abstract provided.

The Possibility Of A Fair Paretian, Howard F. Chang

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No abstract provided.

Knowledge About Welfare: Legal Realism And The Separation Of Law And Economics, Herbert J. Hovenkamp

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The welfare state could not function without judgments about how well off its citizens are. For example, governments devise progressive income taxes, which are designed to capture more wealth from the well off and less from the impecunious. These policies presume an ability to take a manageable amount of information about an individual's income or assets and make judgments about her welfare. In fact, people do this all the time, mostly without thinking about the methodological problems involved.

The superficial casualness of our daily observations about welfare belies the state of the economic science of welfare measurement. Economists have attempted …

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

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No abstract provided.

Threats And Preemptive Practices, Claire Oakes Finkelstein

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No abstract provided.