Recent Submissions


    Trias-Monge, Jose (1948-01-01)
    No abstract provided.
  • The Three Faces of Bankruptcy Law

    Brunstad, G. Eric (2014-01-01)
    Bankruptcy law is an ancient, peculiar feature of our legal landscape. Historically, it has existed from time to time as a collection of extraordinary remedies assembled to address three basic questions: (1) what is to be done with the person of an insolvent debtor, (2) what is to be done with the insolvent debtor’s property, and (3) what is to be done with the insolvent debtor’s liabilities? It is peculiar for several reasons. First, the need for a special collection of bankruptcy procedures is not so obvious. Non-bankruptcy law already provides vast mechanisms for collecting debts, distributing property, and sorting the rights of competing claimants against a common obligor. One might well ask: why have yet another mechanism for doing so simply because one of the parties in interest—the debtor—has become insolvent? For much of United States history, the nation had no formal bankruptcy law, and thus one potential answer to this question (albeit an incorrect one) is that there is no particular need for a distinct bankruptcy regime. Second, few areas of the law have been the subject of such rancorous experimentation. In both England and the United States, bankruptcy law evolved in fits and starts, sparking controversy at every turn. As Justice Cardozo aptly remarked in his dissent in Ashton v. Cameron County Water District, the history is one “of an expanding concept . . . that has had to fight its way. Almost every change has been hotly denounced in its beginnings as a usurpation of power.” Although the details of these controversies have evolved over time, bankruptcy law remains a hotly polarizing topic. Third, few areas of the law are so poorly understood and theorized, and the relevant deficiencies include (1) the absence of a satisfactory account of the need for a distinct body of bankruptcy remedies, and (2) the lack of an adequate theory explaining how bankruptcy law ought to respond to that need. The first deficiency is foundational, the second is ordinal, and they should be addressed in the order stated. From a normative perspective, if there is no particular reason for having a bankruptcy law, then there is no particular reason to consider how it should be arranged. Conversely, until the reasons for having a bankruptcy law are fully understood, discussions of its normative content are likely simply to “float . . . in the air.”
  • The Constitutional Protection of Property Rights in Argentina: A Reappraisal of the Doctrine of Economic Emergency

    Elias, José (2014-01-01)
    This dissertation addresses the topic of the constitutional protection of property rights in the context of economic emergencies, especially —although not exclusively— in cases of financial crises. In so doing, it brings together several different strands that seldom appear side-by-side in the constitutional theory literature: emergency powers, property theory (especially, takings-related notions), constitutional interpretation, legal and institutional history, public choice, and theories of justice. It also resorts to recent empirical work on the legitimacy of courts and relies on insights from the fields of economics and behavioral economics to shed light on some of the more disquieting questions posed by the phenomenon of economic emergency. Throughout this journey, I will try to convince the reader that many of our most common assumptions regarding the role of courts in socio-economic matters and the place of property rights in the constitutional space, among others, deserve a profound revision. Conventional wisdom will be frequently put to question. While this work uses Argentina‘s history as a case study, it certainly aspires to offer quite a few insights that may contribute to the broader, global debate over constitutional property and over emergency powers.
  • A Theory of Domestic Violence in International Law

    Meyersfeld, Bonita (2016-01-01)
    This thesis is born of the question: why do women suffer domestic violence disproportionately to any other group? Why does it continue, in the same form, with the same degree of pain, without rebate? And, if the same harm occurs over and over again, consistent through generations and uniform across borders, why then has the international community not yet developed effective means to address it? This thesis attempts to find a legal answer. This is prefaced, however, by the acknowledgement that the law is only one tool in an array of mechanisms, such as health, economics, and politics, which, if properly combined, could alleviate the pain and difficulties experienced by many victims of domestic violence. The area of law to which I look is international human rights law. My initial motivation for considering public international law arose from the repetition of similar forms of domestic violence around the globe. All over the world women suffer the same type of violence at the hands of their intimate partners and they endure the same feelings of helplessness and isolation when looking to the state for protection. If such violence is universal, it seems then, so too should be the solution. I propose in this thesis that international law, if properly fashioned, can be used effectively as part of this solution. In particular, I maintain that the authoritative enunciation of a norm against domestic violence in international law can improve the way states address domestic violence. I do not propose that individual abusers should be tried by international law. My focus instead is on the extent to which states fail consistently to alleviate domestic violence. This is important because many legal systems appreciate neither the exigency of extreme forms of domestic violence, nor the extent to which women as a group are disproportionately victims of this violence. The result of this lack of appreciation is an almost universal failure to police, prevent and punish domestic violence effectively.3 Due to the socialized normalcy of domestic violence, very few cases are reported or actually prosecuted. Where prosecutions do proceed, victims will often drop their complaints either because they have reconciled with, or because they fear recrimination from, their abuser. Given the disjuncture between the reality of domestic violence and the inefficacy of many legal systems to address it, a revision of the law vis-à-vis domestic violence is needed. Both national and international legal systems are in need of change. This thesis proposes that the international community should adopt a clear and authoritative articulation of a legal right against extreme and systemic forms of domestic violence and a corresponding duty of states to help remedy such violence. This proposition is made on the basis that international law currently does not contain an effective articulation of this right, and that adopting effective global standards in international law for addressing such violence would help improve state enforcement of this right. Under the current state of international law, it is difficult to convince states to prioritize its resources and infrastructures to protect abused women. Articulating clear and effective global standards in international law for addressing extreme forms of domestic violence would provide an important and practical benchmark against which domestic state legislation could be evaluated and re-shaped. Formulating such global standards could place pressure on states to take basic remedial steps against such violence, such as enacting legislation that allows for restraining orders to be made at the same time as a maintenance order, or creating accessible shelters, which will accommodate the divergent needs of women, including their children.
  • The Constitution of Japan: An Unfinished Revolution

    Kawagishi, Norikazu (2003-01-01)
    No abstract.

    Olaiz-González, Jaime (2015-01-01)
    Articulating a contemporary narrative of constitutional change in Mexico has been my chief preoccupation over the last four years. The coexistence of a constitutional order based on a monistic democratic model in which normal politics are the exclusive track for constitutional-making and a strong symbolic power of the constitution, has resulted in a seemingly unassailable rampart against the more modern approaches of constitutionalism in which the People are increasingly claiming ownership of the constitution. Furthermore, enduring constitutional inheritances that are no longer suited to present practices, perspectives, expectations and demands muddle further meaningful constitutional change. Authoritarian inheritances coexist with pressing new demands for self-government. Over the last two decades, Mexico’s transition to democracy has been akin to a child learning to walk. A satisfactory democratic outcome has not been achieved, because the constitutive process of authoritative decision-making, a critical part of any transition, has not departed from the traditional Mexican decision-making process. This has been a process that supported an authoritarian regime in which a one-party elite monopolized the power of decision-making. At the center of the problem of transition in Mexico— and perhaps other similarly situated states— is (as we will see) the dichotomy between power and authority, as well as the identity of the effective participants in the constitutive process.

    Birger, Issar (2015-01-01)
    This thesis addresses the following questions, among others. Can two people take the exact same precautions yet face different liabilities for identical accidents? Can two people exercise the same overall care yet face different liabilities? Can a person take more precautions than the efficient level of care requires at the time of the accident, yet justifiably be found liable in negligence? More generally, is the Hand Formula economically misguided or inapplicable, at least in many real-world scenarios? Is the Restatement (Third) of Torts equally misguided or imprecise? Is orthodox economic analysis of negligence law predicated and contingent upon over-constrained and unrealistic assumptions? What are the prerequisites for the application of the conventional model of negligence adjudication? The principle issues examined include (i) Interacting precautions and multidimensional frameworks; (ii) Short-run versus long-run optimization of negligence puzzles; (iii) Pathdependencies and dynamic analysis of care measures; (iv) Non-strictly convex and discontinuous social costs functions; (v) Fluctuating and discontinuous social cost functions; (vi) Threshold effects in costs and efficiency functions; (vii) An expansive methodology to cost-benefit analysis in torts: degrees of freedom, mixed and tailored approaches.
  • The Structure of Norms and Legal Uncertainty: A Framework for the Functional Analysis of Law as Transformed in Multi-Member Decision Mechanisms

    Nordén, Gunnar (2016-01-01)
    Doctrinal studies of law describe relationships between conditioning legal facts and con-sequences, distinguishing between substantive and procedural norms. The latter constitute decision mechanisms that maintain the legal system’s norms. These mechanisms generate binding decisions—ordered pairs of facts and consequences—that may obtain the status of res judicata and become part of the norm system in the extensive sense. Functional analyses of law undertake to study agent equilibrium behavior under given norms, perceived as incentive structures. Characteristically, norms that are maintained through adjudication (or arbitration) are not complete or unambiguous: In the ex ante sense, consequences are not uniquely implied by relevant conditioning facts. This indeterminacy has profound implications: first, in multi-member decision mechanisms norm structures are systematically transformed; second, these transformed norms or incentive structures guide agent (equilibrium) behavior. These observations challenge the approach that currently prevails in legal theory, namely of considering substantive norms as abstract entities independent of procedural mechanisms. They also suggest opportunities for widening the scope of functional or repercussion analyses of law. This dissertation develops an analytical framework that seeks to enable the study of norm transformation in multi-member judicial decision mechanisms. The framework’s relevance is demonstrated through numerous examples showing how equilibrium out-comes vary with mechanisms shaping the incentive structures. The framework is developed using formal representation of norms and by ex ante identification of judges (arbitrators) and norms. These representations combine functional relations with basic notions from probability theory that are simple enough to be operative in equilibrium analyses, and, at the same time, rich enough to embody detailed aspects of procedural law. The framework facilitates: (i) distinction between “meta-norms” (the doctrine of sources and judicial method) and “ordinary norms” (doctrine in the customary sense); (ii) depiction of (possible) indeterminacy at both levels; (iii) modeling of multi-member decision-making; and (iv) simultaneous consideration of epistemic uncertainty. The identification of norms and judges envisions judging as commitment, in contrast to a preference-based, rational choice account. The approach combines insights from logical aggregation, case-space, and evolutionary theories. Under meta-level uncertainty, judges may base decisions on different substantive norms. Under ordinary-level uncertainty, they may reach different conclusions under the same substantive norm. In correspondence with standard conceptions of legal decision-making, judges applying law vote directly on outcomes or on substantive norm elements, not abstractly over substantive norms. The commitment notion assumes judges vote independently (non-strategically) as uncertainty is resolved. Both majority and super-majority aggregation rules are studied (the latter require default state specifications). Implications of sequential decision-making (bifurcation) and separation of (collective) decisions on law and facts are also analyzed. The framework is applied to a detailed analysis of the model of precaution, which has a prevalent and unifying role in many areas of law. Equilibrium precautionary investment is derived under uncertain negligence standards, and under mixed norms (uncertainty between strict liability and negligence). Continuous comparative statics reflects the parametric representation of uncertainty on both the meta and ordinary level. Discrete comparative statics reflects decision mechanism size. A condensed analysis of final-offer arbitration demonstrates that the framework is applicable to strategic environments. The norm representation enables one to distinguish between primary norms ex-pressing obligations and power-conferring secondary norms, which express discretion or options. This distinction is reflected in suggested law-in-force notions, with discretion motivating a forward-looking, means-end approach (in fact, partly due to logical problems arising under aggregation). Examples used to illustrate the benefits from detailed attention to norms structures include entitlement-protection in exchange economies and legal commitment mechanisms in strategic environments. Under indeterminacy, norm structures and induced equilibria vary systematically with decision mechanisms. This sensitivity, exacerbated by epistemic uncertainty, accentuates the question of evaluative criteria as discussed in legal and political philosophy. In reference to observed authority structures, the majority outcome in large panels is suggested as a benchmark, making possible a study of the link between (finite, real-world) mechanism choice and Type I and II error generation. Some analytical results may be of independent interest. Judicial panels trans-form marginal dimensions of incentive structures. This is important when conditioning legal fact sets are choice or strategy spaces for optimizing agents (level transformations correspond to Condorcet-type theorems). Second-order stochastic dominance is used to describe panel size effects on a domain of substantive norms. First-order stochastic dominance is used to compare unitary and bifurcated trials. Due to analytical challenges, some results are based on asymptotic theory. The equilibrium analyses are supported by simulations.