• 100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

      Graetz, Michael (2002-01-01)
      We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy. But the coming decade, with its paint-by-numbers phase-ins and phase-outs of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire Act in 2011, makes this a propitious time to take a hard look at the nation's tax system. Describing the nation's current federal tax system in anything other than tentative and uncertain terms is impossible. Even the most sophisticated tax lawyer cannot be sure what the current statute means for the future. Should we, for example, believe that more than thirty-five million taxpayers—nearly one-third of all individual filers—will be subject to the alternative minimum tax (AMT), as the current law implies? Or should we instead be confident that some future Congress will avert that train wreck? The 2001 Act repeals the estate tax only for the year 2010. That is why Paul Krugman described that year as an auspicious time to throw Momma from the train—at least if she is rich. But has the estate tax really been repealed?
    • 13 Ways of Looking at Dred Scott

      Balkin, Jack; Levinson, Sanford (2007-01-01)
      Wallace Stevens found in the blackbird an inexhaustible source of different perspectives. One could say the same of Dred Scott v. Sandford. A full 150 years after it was handed down, Dred Scott still fascinates and bedevils constitutional theorists and political scientists. It is truly a classic case whose meaning seems magically to make itself relevant as new situations and problems arise. No matter how much we think we understand the noble accents and inescapable rhythms of law and political science, we discover that Dred Scott, like the blackbird, is involved in what we know. In March of 2006, the two of us, along with Paul Finkelman, organized a conference at the University of Texas to commemorate the upcoming 150th anniversary of the 1857 decision. The more we talked about Dred Scott, the more we discovered that it could not easily be buried in the past. It was still with us in countless ways; indeed we found that Dred Scott was relevant to almost every important question of contemporary constitutional theory. And so, in this essay, we offer a baker's dozen reasons why Dred Scott continues to deserve a central place in the canon of American constitutional law.
    • 1998 Frankel Lecture: Bringing International Law Home

      Koh, Harold (1998-01-01)
      It is an honor to deliver this Frankel Lecture, particularly in the company of two of my intellectual polestars: Thomas Franck of New York University School of Law and Robert Keohane of Duke University. These two scholars, and the academies they lead, represent the yin and the yang of my own education in international affairs. I first began studying international relations in 1972 as an undergraduate in the Harvard Government Department, in which Bob Keohane reigned for years as the benevolent hegemon. As a Justice Department lawyer in the 1980's, I cut my teeth on the very issues of public international law and the Constitution and foreign affairs upon which Tom Franck has been a leading commentator for decades.
    • 1998 Harris Lecture: How Is International Human Rights Law Enforced?

      Koh, Harold (1999-01-01)
      I am greatly honored to deliver this distinguished Lecture, particularly given the illustrious list of lecturers who have preceded me to this podium. My own path to this podium began in Washington, D.C., where as a private lawyer I specialized in issues of international business and trade law: what most American law schools now think of as "international business transactions." But even while working on these matters, I became increasingly diverted toward the novel, growing field of international human rights. While in private practice in the early 1980s, I became involved in the representation of the American hostages who had been held for 444 days in the U.S. embassy in Tehran. Once starting an academic career, I took occasional forays into international human rights advocacy, but my main focus remained on the law of international business transactions and United States foreign policy, two examples of what Henry Steiner and Detlev Vagts have felicitously dubbed "Transnational Legal Problems."
    • 1998 Ladd Lecture: Empire or Residue: Competing Visions of the Contractual Canon

      Ayres, Ian (1999-01-01)
      Is the domain of contract waxing or waning? Lawrence Friedman's pathbreaking 1965 book, Contract Law in America, characterized contract law as covering a residual category of relatively unimportant transactions. He argued that whenever particular types of transaction became sufficiently salient—such as those concerning employment or insurance—specialized regulation was promulgated that "robbed contract [law] of its subject-matter." Nine years later, Grant Gilmore expressed this idea similarly in The Death of Contract, where he regarded "the general law of contract as a residual category—what is left over after all the 'specialized' bodies of law have been added up." In stark contrast to this residual conception, many scholars have trumpeted a much more imperialist conception of contract's domain. John Langbein, for example, recently opined: Contract has become the dominant doctrinal current in modern American law. In fields ranging from corporations and partnership, to landlord and tenant, to servitudes, to the law of marriage, scholars have come to understand our legal rules as resting mainly on imputed bargains that are susceptible to alteration by actual bargains. Under this view, the bedrock principles of contract inform (or should inform) an ever increasing range of legal relationships.
    • 1998 Monsanto Lecture in Tort Reform and Jurisprudence: Protecting Property with Puts

      Ayres, Ian (1998-01-01)
      One View of the Cathedral is famous in part because Guido Calabresi and Douglas Melamed noticed a missing category in the ways that courts resolved nuisance disputes.) Consider the classic—if somewhat idealized—nuisance dispute between a single "Polluter" and a single "Resident" who is discomforted by the pollution. Courts had traditionally chosen among three different outcomes: Rule 1: a court might issue an injunction against a Polluter; Rule 2: a court might find a nuisance but permit pollution to continue if the Polluter chose to pay damages; or Rule 3: a court might find the pollution not to be a nuisance and permit the Polluter to continue without paying damages. But Calabresi and Melamed, by appreciating the difference between liability and property rules, saw that these three approaches naturally fit into a two-by-two box. The problem with the traditional three-way approach was that one of the boxes was empty. Calabresi and Melamed's theory suggested a fourth approach: Rule 4: a court might permit a Polluter to continue unless the Resident chose to pay the Polluter damages in order to enjoin further pollution.
    • 2000 Monsanto Lecture in Tort Reform and Jurisprudence: Using Tort Settlements to Cartelize

      Ayres, Ian (2000-01-01)
      The tobacco company settlements, with four individual states (Florida, Minnesota, Mississippi and Texas) and the subsequent multistate agreement of November 1998, represent a legal innovation in cartelization technology. These new settlements allow state and local governments to act as cartel ringmasters—writing enforceable contracts which will predictably (i) raise the market price toward the monopoly level, (ii) split the supra-competitive profits with the government, and (iii) deter new entry. If such settlements are enforceable, states that have virtually no nexus with a set of industry producers—and in fact have not been injured by the industry—may nonetheless "race to the bottom" by suing and settling with an industry in order to enjoy a share of the cartel profits. Unfortunately, it is far from clear that such settlements currently run afoul of the law, and this Article accordingly recommends that federal legislation should prohibit the types of settlement structures that are most likely to produce cartel-like results. It has been understood that anticompetitive settlements can be produced when competitors sue each other in intellectual property or merger contexts. It has also been understood that captured state agencies may cartelize in-state producers of a particular product. But the individual state tobacco settlements suggest that a state may profitably cartelize out-of-state producers. States may settle fallacious tort claims to cartelize industries with which the state has no contacts whatsoever. The Minnesota tobacco settlement, for example, allowed out-of-state cigarette manufacturers to coordinate charging higher prices in exchange for reduced legal liability.
    • 2018 James McCormick Mitchell Lecture The First Amendment in the Second Gilded Age

      Balkin, Jack (Buffalo Law Review, 2018)
      We are now well into America's Second Gilded Age. The First Gilded Age was the era of industrial capitalism that began in the 1870s and 1880s and continued through the first years of the twentieth century, leading to the Progressive Era.2 It produced huge fortunes, political corruption, and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy. The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the 1980s, but it really takes off in the early years of the commercial Internet in the 1990s, and it continues to the present day. It is characterized by the rise of social media and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society. If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy. Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet given way to a second Progressive Era, but every day I see signs that this is where we are headed.
    • 5 Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges From Office for Unpopular Decisions?

      Bright, Stephen (1997-01-01)
      The increasing political attacks on the judiciary by both major political parties and by candidates for judicial office are diminishing the independence of the judiciary and, equally important, the public's confidence in it. Thus, the distinction between fair criticism of judges and intimidation of them is an important one. There is no question that fair criticism plays a critical role in improving the quality of the courts. Every appeal, every petition for rehearing, every dissent is a criticism of a judicial decision. Decisions like Dred Scott v. Sandford, Plessy v. Ferguson, and McCleskey v. Kemp should be criticized. Citizens should ask if these decisions were correct. What does the Constitution require? Should it be amended? If the case involved a matter of statutory interpretation, should Congress respond with legislation? It is equally clear that everyone in the United States has a First Amendment right to be a demagogue and to make irresponsible criticism. But irresponsible criticism which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law. Courts have a duty to protect the rights of minorities-political, racial, ethnic-no matter how unpopular their rulings may be. Legislators or executives may base their decisions on focus groups or public opinion polls, but judges may not. Judges are expected to enforce the law, whether it be the First Amendment freedom of the radical right or the radical left to publish political views which may seem distasteful to some, the right of The New York Times to publish the Pentagon Papers or the right of a suspected child molester to a fair and impartial trial. As Edmund Burke put it, the judiciary is to serve as "safe asylum" during times of crisis. In the United States, courts are to uphold the Bill of Rights regardless of whether the decision is popular at the time. No one has said it better than Justice Jackson: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. This important concept seems to have been forgotten. Indeed, former judge Robert Bork, a self-described strict constructionist, proposed in his book, Slouching Towards Gomorrah, that Congress should be given the power to override Supreme Court decisions. Governor Fob James of Alabama has also expressed the view that the state legislature and governor should be able to override decisions of his state's highest court and, on the federal level, that the President and Congress should simply ignore Supreme Court decisions they "know" to be wrong.
    • A Bargaining Theory Approach to Default and Disclosure Provisions in Contract Law

      Coleman, Jules (1989-01-01)
      Legal rules facilitate as well as constrain human freedom. H.L.A. Hart captures the difference between these two functions of law by distinguishing between primary and secondary rules. Primary rules impose obligations and thereby constrain behavior. Secondary rules empower individuals to create relations that confer rights and impose duties. Thus, the criminal law constrains individual liberty; the law of contracts enhances it.
    • A Behavioral Approach to Law and Economics

      Jolls, Christine; Sunstein, Cass; Thaler, Richard (1998-01-01)
      Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people's choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.
    • A Bibliography of the Customary Laws of Kenya (with Special Reference to the Laws of Wrongs)

      Abel, Richard (1969-01-01)
      This bibliography was developed in the course of research in the customary laws of wrongs in Kenya, and is therefore most thorough with respect to that subject. However, the nature of customary law is such that wrongs do not form a sharply differentiated substantive area. Moreover, other bodies of law–e.g., those pertaining to the family, to property rights, to procedural matters–clearly bear on the treatment of wrongs. Consequently, most sources cover a broad subject matter, and in seeking to include all those having any bearing on the laws of wrongs, I believe I have been reasonably comprehensive. Two areas were deliberately excluded. Non-customary laws–received English law, adopted Indian Acts, Moslem or Hindu law–where it has no bearing on customary practices, is not referred to. Within customary law itself, the rules of land law have only been dealt with incidentally, for the area is sufficiently specialized to constitute a separable subject matter, with an extensive bibliography of its own.
    • A Blue Print For The Certified Check

      Steffen, Roscoe (1935-01-01)
      In the growth of an institution there are often many stages, before it reaches old age and is cast aside, if that time ever comes. It is the resultant of a variety of forces, some enlightened, some blind. It is shaped this way and that to answer varying demands of business, of politics, of law, of ethics. It may be constricted for a time, or even lose its identity entirely, by being forced into some category with other things-a consequence of too limited imagination, or the urge to standardize. At all events the certified check has been no exception. Like other legal-economic institutions it has been builded piecemeal, with many builders and few architects, much tearing down and rebuilding, and, of course, much argument throughout. But, though it has survived and at times flourished for at least a century as a distinctive American institution, things have now come to a point where some careful planning is needed to safeguard its immediate future.

      Wishnie, Michael (2017-01-01)
      There is a paradox at the heart of veterans' law. Former service members receive more generous disability, health care, housing, and other public benefits than those available to indigent or disabled members of the general public.
    • A Break in the Silence: Including Women's Issues in a Torts Course

      Finley, Lucinda (1989-01-01)
      I teach torts, a mainstay of the first year law curriculum. Judging from the way most casebooks present this subject, one would think that notions about gender roles and gender stereotypes are irrelevant to the past development or current understanding of tort law. Economic theory, on the other hand, is presented as obviously relevant to the subject. So what possible insights could feminist theory offer to tort law? After all, the torts course is not just about women.
    • A Brief History of Special Verdicts and Special Interrogatories

      Morgan, Edward (1923-01-01)
      When battle and inquest were introduced into England by the Normans as modes of proof, they took their places beside the Anglo-Saxon ordeal and wager of law as methods of determining disputes between litigants. The functions of the court with reference to the inquest were identical with its functions with respect to the ordeal or battle, namely, to decide whether it was a permitted means of proof and to supervise its performance. The issues submitted to the older forms of trial frequently, if not usually, involved mixed conclusions of law and fact. Naturally the inquiries put to the inquest were of a similar character. There was no thought of separating questions of law from questions of fact. Thus, the grand assize in a writ of right was asked to say whether the demandant or the tenant had the greater right in the land, services, or other thing involved. In the assize of novel disseisin, the jurors who forrmed the petty assize were called upon to determine whether A had disseised B unjustly and without judgment. In the assize of mort d'ancestor, they were required to tell whether A was seised of certain land on the day of his death and whether B was his next heir. The answer given by ordeal, battle, or wager of law was final, for it was dictated by the supernatural. While there seems to have been a tendency at first to accord the same finality to the answer given by the inquest, yet it was early perceived that, as the work of mere man, it was liable to error, and that it should be subject to correction.
    • A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension

      Calabresi, Guido (2014-01-01)
      Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice—the right of an injured party to be made whole—or of redress for civil wrongs—the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal–political–economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled Public Law Perspectives on a Private Law Problem. It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today.
    • A Cabin on the Mountain: Reflections on the Distributional Consequences of Environmental Protection Programs

      Elliott, E. Donald (1991-01-01)
      Tonight I am going to make a few remarks about the general issue of the distributional consequences of environmental protection programs. Then I want to save some time at the end to respond to your questions, either on that topic or more generally, about what we at EPA are doing to protect the environment.
    • A Cautionary Note on Drawing Lessons from Comparative Corporate Law

      Romano, Roberta (1993-01-01)
      Mark Roe's article comparing German, Japanese, and U.S. corporate governance extends his important research concerning the effect of political constraints on the organization of U.S. corporations. In this latest publication, Roe painstakingly compares governance arrangements, highlighting the variability in business organization that exists across nations, to obtain guidance for reforming U.S. institutions. This is valuable comparative institutional research, but the lesson to be drawn from the mutability of the corporate form is opaque. As Roe suggests, the legal and institutional differences across the three nations make it difficult to ascertain whether one approach to corporate governance is superior to another and whether a superior organizational form could be successfully transplanted into another setting. Yet without a means to make comparative judgments, the likelihood that helpful lessons can be drawn from other nations' experiences for reforming our own institutions is diminished, and the rationale for making the comparisons in the first place becomes problematic.
    • A Circle of Trust: The Story of the See Forever School

      Forman, James; Domenici, David (2012-01-01)
      In April 1997, we left our jobs as lawyers to start a school for court-involved kids. We had $50,000, donated office space, and lots of energy. We had no staff, site, curriculum, or other funding. But we had a mission—we wanted to create the best school in the country for kids who had been arrested. And we were in a hurry. We knew kids who needed the school—and they needed it right then—not years down the line. Five months later we opened our doors to 20 kids and a small staff, crammed into a row house in the heart of Washington, DC. This is the story of how we got started.