• A Closer Look: A Symposium Among Legal Historians and Law Librarians to Uncover the Spanish Roots of Louisiana Civil Law

      Miguel-Stearns, Teresa; Feliu, Vicenc; Kim-Prieto, Dennis (2010-01-01)
      The debate regarding whether the origin of Louisiana civil law is based in the Spanish or in the French legal tradition has been ongoing since that state's incorporation into the United States as a result of the Louisiana Purchase. Distinguished legal scholars have argued in favor of one tradition being dominant over the other, and each has been staunch in support of that view. This article proposes and demonstrates that the Spanish, not French, civil law had an enormous influence on the creation and evolution of Louisiana civil law, and that this legacy resonates today.
    • A Critique of 'Tangibility' as the Basis for Property Rules

      Ayres, Ian; Goldbart, Paul (2001-03-09)
      Kaplow and Shavell have recently claimed that property rules tend to protect tangible entitlements more efficiently than do liability rules. They argue that while liability rules tend to efficiently harness the defendant’s private information when courts are imperfectly informed as to litigants’ valuations of intangible entitlements, this harnessing effect does not apply to tangible entitlements for two reasons. First, they argue that the prospect of multiple takings (by others or even the original entitlement holder taking back the entitlement) makes it impossible to implement liability rules with regard to tangible entitlements. Second, they argue that liability rules cannot harness private information when the disputants’ valuations are correlated and that valuations of tangibles tend to be more correlated than valuations of intangibles. In this essay, we reject both the multiple-takings and the correlated-value claims. Our thesis is that, while both present real problems of implementation, the authors’ own harnessing result can be extended to redeem the usefulness of liability rules even when values are correlated and even when there is the prospect of multiple takings. We will show that, even in the presence of these problems, enlightened courts can manipulate the damages that takers expect to pay so as to induce efficient takings. The authors’ numeric examples purporting to show the dominance of property rules systematically understate the potential efficiency of liability rules. Their examples compare the more efficient property rules to liability rules that use inefficient damages and systematically delegate allocative authority to the less efficient litigant. If the more appropriate comparisons are made, in all of Kaplow and Shavell’s examples liability rules (which anticipate non-consensual takings) dominate property rules.
    • A Remedy for Congressional Exclusion from Contemporary International Agreement Making

      Harrington, Ryan (2016-01-01)
      When Harold Koh, as Legal Advisor to the U.S. Department of State, recently gave an address on 21st-century international lawmaking, he spoke about using much more than treaties and executive agreements to achieve policy goals.1 He also gave several examples of "memorializing arrangements or understandings that we have on paper without creating binding legal agreements with all the consequences that entails."2 One example of a non-legally binding agreement, or "political commitment," is the Copenhagen Accord. The Accord secured commitments on emissions reductions from 141 countries around the world.3 Pursuant to the Accord, the United States voluntarily submitted its intention to reduce domestic greenhouse gas emissions by 17% in 2020.4 The executive branch, however, has not presented the Copenhagen Accord to the Senate because it believes that political commitments do not require advice and consent. Instead, the executive branch submitted a letter directly to the United Nations Framework Convention on Climate Change indicating that the United States "associates itself ' with the agreement.5
    • A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game

      McAdams, Richard; Nadler, Janice (2003-07-01)
      Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because "mixed motive" games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players' attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players' attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.
    • Abortion and Crime: Unwanted Children and Out-of-Wedlock Births

      Lott, John; Whitley, John (2001-05-16)
      Abortion may prevent the birth of "unwanted" children, who would have relatively small investments in human capital and a higher probability of crime. On the other hand, some research suggests that legalizing abortion increases out-of-wedlock births and single parent families, which implies the opposite impact on investments in human capital and thus crime. The question is: what is the net impact? We find evidence that legalizing abortion increased murder rates by around about 0.5 to 7 percent. Previous estimates are shown to suffer from not directly linking the cohorts who are committing crime with whether they had been born before or after abortion was legal.
    • Ambivalence and Activism: Employment Discrimination in China

      Webster, Timothy (2010-08-01)
      Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to bring legal challenges against employers who have discriminated against them in hiring. Plaintiffs’ relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists and scholars who actively support plaintiffs, suggesting a limited role for civil society in the world of Chinese law. While many problems remain with employment discrimination, China has made concrete steps toward repealing a legal edifice of discrimination stretching back decades, and reshaping both policies and attitudes to eradicate discrimination in the workplace.
    • Argentina, SOURCES OF STATE PRACTICE IN INTERNATIONAL LAW.

      Miguel-Stearns, Teresa (2014-01-01)
      La Republica de Argentina is the successor State of Spain in the Southeastern portion of the former Spanish empire in the Americas. At the time of independence, first declared in the Viceroyalty of Buenos Aires in 1810, the territory included present-day Argentina, Uruguay, Paraguay, and Bolivia. The region became known as the United Provinces of the Rio de la Plata. The territory was administered by the government in Buenos Aires. The Congress of Tucuman issued a formal Declaration of Independence in 1816. Shortly thereafter, Uruguay, Paraguay, and Bolivia established independent nations and the remaining territory formed Argentina.
    • Assessing the Cost of Regulatory Protections: Evidence on the Decision to Sell Securities Outside the United States

      Choi, Stephen (2001-05-01)
      This paper examines the factors that affect the decision of U.S. companies to issue securities offshore compared with inside the United States. Utilizing a data set of 1,444 domestic private placements and offshore offerings from 1993 to 1997, the paper reports that firms that experienced a private securities fraud lawsuit in the past resort to foreign sources of capital more frequently. Similarly, companies in standard industrial classification groups that are targeted more often with private securities fraud litigation are also more likely to issue securities offshore than to conduct domestic private placements. Not all issuers, however, choose to exit the U.S. regime. The paper employs past experience with a SEC investigation as a proxy for the amount of risk that the issuer may pose to investors. Issuers with private securities fraud litigation experience that also encountered a past SEC investigation are more likely to raise capital through a domestic offering, consistent with the hypothesis that some issuers choose to raise capital in the United States when the bonding and signaling value of the U.S. legal liability regime outweighs the costs associated with antifraud liability.
    • Bad Policy For Good Policies: Article 9's Insurance Exclusion

      Verstein, Andrew (2011-01-01)
      Article 9 of the Uniform Commercial Code excludes from its scope any transfer of an interest in a life insurance policy. Thus, any lender whose security is a life insurance policy may not look to the UCC to determine her rights. This Article argues that the exclusion should be eliminated because it leaves insurance governed by antiquated and problematic law. Three specific problems are considered:non-UCC law does not have a satisfactory alternative to UCC perfection; non-UCC law is insufficient to prevent lenders from abusively taking more than their share of value from defaulted policies; and non-UCC law allows insurance companies to hinder securitization through the reservation problem.‖ The result is that Americans borrow $121 billion worth of policy loans, almost all of which comes without serious competition. Eliminating the life insurance exclusion will rationalize the law of lending in this area, and improve prospects for a secondary market.
    • Bayesian Juries and The Limits to Deterrence

      Friedman, Ezra; Wickelgren, Abraham (2002-11-22)
      We consider a model of crime with rational Bayesian Jurors. We find that if jurors are not perfectly informed, even when there is no limit to the size of the punishment that can be imposed, it is not possible to deter all crime. There is a finite lower bound on the crime rate which results from the difficulties in achieving a conviction with imperfect evidence and very low crime rates. Crime can not be reduced below this rate by increasing the penalty, but the lower bound can be decreased by improving the quality of evidence presented to jurors, or by increasing the threshold of evidence necessary for prosecution.
    • Book Review: Privacy and Confidentiality Issues: A Guide for Libraries and Their Lawyers

      Krishnaswami, Julie (2009-01-01)
      The privacy and confidentiality of library patrons concerned many public libraries after September 11, particularly because of the passage and enforcement of the Patriot Act. Theresa Chmara, a litigator who has represented the American Library Association, the Freedom to Read Foundation, and the American Bookseller’s Association, provides concise and useful guidelines for libraries about these and other related issues in Privacy and Confidentiality Issues: A Guide for Libraries and Their Lawyers. This work is highly recommend for public library directors but should be required professional reading for all library directors. Additionally, library schools, which have an obligation to educate future librarians about the First Amendment concept of privacy in the context of the library, should purchase this book. It also serves as a great edition to a law school’s First Amendment collection for the same reasons as well as to bolster an academic collection that may lack practice oriented sources in this area.
    • Book Review: The Legal Landscape -- A Review of John Copeland Nagle, Law's Environment: How the Law Shapes the Places We Live

      Krishnaswami, Julie (2011-01-01)
      In "Law's Environment: How the Law Shapes the Places We Live," Hone Copeland Nagle reflects on unremarkarkable geographical lands impacted by major environmental legislation and considers the values implicit in environmental legislation. Nagle's thesis is that multiple environmental laws typically weave together to shape a region. IN this text, the consequences of environmental legislation are examined by looking at the impact of the laws on the natural environment of five distinct places.
    • Book Review: Viral Spiral: How the Commoners Built a Digital Republic of Their Own

      Krishnaswami, Julie (2009-01-01)
      Book review of David Bollier's Viral Spiral (2008). The Internet today is controlled chaos: user-generated content on Web 2.0 platforms, blogs by citizen-journalists, social networks such as Facebook and Twitter, the photo-sharing community of Flickr, digital remixes of music and videos, wikis, open-access journals, and e-books. The Web has been transformed and a new cultural movement - known as "Free Culture" or "the commons" - is underway. Members of the Free Culture movement (commoners) value collaboration, share intellectual property, are self-directed, and resourceful. Yet these trailblazing individuals are simultaneously entrepreneurial and well-aware of traditional market forces. In Viral Spiral: A History of Our Movement, David Bollier argues that these values and behaviors are "history-making," creating a "new species of citizenship in modern life" and over time "this citizenship and the culture that it is fostering are likely to be a politically transforming force." This text is highly recommended for any law library’s collection.
    • Bridging the Abyss: Law librarians come together to prepare new attorneys

      VanderHeijden, Mike (2007-01-01)
      This early morning session was billed as an open forum for law firm librarians and academic librarians to engage about the issue of new attorney preparation and training. We’ve all heard accounts of woefully unprepared first-year attorneys. In my experience as a law firm librarian, I’ve found that these accounts represent more of an exception than a rule. However, on numerous occasions I’ve also witnessed the rhetorical question, “What are they teaching them in law school?!” served to sympathetic colleagues with no shortage of indignant relish. So, as I roused myself from another vendor-induced slumber to sit in on this panel discussion, I hoped for a civil dialogue but prepared for a more partisan exchange.
    • Comparative Law: Academic Perspectives

      Miguel-Stearns, Teresa (2011-01-01)
      Over the past 15 years, comparative law has undergone a dramatic and profound metamorphosis. The academic literature reveals a sense of hopelessness for the sustained endurance of the discipline in the mid- l 990s but shows signs of a rejuvenated and reinvented discipline in the first decade of the new millennium. One reason could be a changing-of-the-guard in comparative law faculty around the world with the 'heroes of the golden era' (Markesinis 2003, 2) being replaced by younger scholars leading a renewed charge with creative and thought-provoking comparative legal theories and methodologies. Another reason might be the smaller world in which we live due to globalisation and access to new information and communication technologies. There is also more effort towards unification and harmonisation of national and transnational laws, as seen in the creation of a European civil code (Smits 2007) and uniform social welfare obligations in India (Menski 2007), which can be achieved only by careful, analytical, comparative legal analysis.
    • Constitutional Reform in the Arab Spring: A New Beginning or an Unhappy Ending?

      Brown, Nathan (2013-01-01)
      Some years ago, when I was considering various paths my scholarly agenda could take, I asked a colleague of mine who worked on international law regarding Antarctica how he had selected his specialization. He responded that the obscurity of the subject was its own reward: even if he produced bad scholarship, he would still be one of the top people in his field. It was in this spirit that I decided to focus on constitu­tionalism in the Arab world. What little attention the topic had attracted was negative. For centuries, Middle Eastern political systems have been held up by Western students of constitutionalism to be negative models: helping us understand who we are by showing us what we are not.
    • Contract Theory and the Limits of Contract Law

      Schwartz, Alan; Scott, Robert (2003-04-25)
      Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts between business firms. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single norm -- such as autonomy or efficiency -- also have foundered over the heterogeneity of contractual contexts to which the theory is to apply. Pluralist theories attempt to respond to the difficulty that unitary normative theories pose by urging courts to pursue efficiency, fairness, good faith and the protection of individual autonomy. Such theories need, but so far lack, a meta principle that tells which of these goals should be decisive when they conflict. We attempt to make progress here with a more modest approach -- to set out and defend a normative theory to guide decisionmakers in the regulation of business contracts.
    • Culture in the Time of Tolerance: Al-Andalus as a Model for Our Time

      Menocal, Maria (2000-05-09)
      María Rosa Menocal is the R. Selden Rose Professor of Spanish and Portuguese and director of the Whitney Humanities Center at Yale University. This is the text of a lecture given at the closing dinner of the Middle East Legal Studies Seminar (MELSS), Istanbul, Turkey, May 9, 2000. These remarks are all adapted from material in the author's forthcoming book, The Ornament of the World: How Muslims, Jews and Christians Created a Culture of Tolerance in Medieval Spain to be published by Little, Brown and Company in the spring of 2002.
    • Democratizing the Economic Sphere: A Case for the Political Boycott

      Lee, Theresa (2012-03-01)
      The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize business in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy and self-governance, and self-expression and autonomy. It also places the boycott alongside current campaign finance doctrine via Citizens United v. FEC. Just as money amassed by corporations in the economic marketplace can be used to influence the political, the boycott allows those whose main economic resource is their participation in the market as consumers to aggregate that resource, with other like-minded consumers, to influence the political marketplace. The paper also explores the doctrinal implications of these arguments for ongoing lawsuits challenging compelled disclosure regimes. As-applied challenges to such laws can be granted upon a sufficient evidentiary showing of “threats, harassment, or reprisals.” This Article argues that the boycott cannot be categorized in this way. Especially in the case of initiatives and referenda, the political boycott is a critical tool of petition and should not be considered in this as-applied harassment analysis.