Law, Development and Innovation

Edisi

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ISBN/ISSN

978-3-319-13311-9

Deskripsi Fisik

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Judul Seri

SxI – Springer for Innovation /SxI – Springer per l'Innovazione Volume 13

No. Panggil

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Homicide Data Sources: An Interdisciplinary Overview for Researchers

Edisi

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ISBN/ISSN

978-3-319-19881-1

Deskripsi Fisik

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Judul Seri

SpringerBriefs in Criminology

No. Panggil

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Introduction to Law

The Introduction to Law that you are now holding is special in the sense that it introduces students to law in general and not to the law of one specific jurisdiction. It has been written with two purposes in mind. In the first place, this book is meant to be used in the course Introduction to Law of the Maastricht European Law School. This course aims to provide law students with global kn…

The Pattern of Indoor Smoking Restriction Law Transitions, 1970–2009: Laws …

Objectives. We examined the pattern of the passage of smoking laws across venues (government and private workplaces, restaurants, bars) and by strength (no law to 100% smoke-free). Methods. We conducted transition analyses of local and state smoking restrictions passed between 1970 and 2009, with data from the Americans for Nonsmokers’ Rights Ordinance Database. Results. Each decade, more law…

Merging the Law of War with Criminal Law: France and the United States

Edisi

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ISBN/ISSN

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Deskripsi Fisik

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Judul Seri

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No. Panggil

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Law in Light of Zionism: A Comparative View

The article is a conceptual analysis of the challenges Zionism has faced in forging a coherent relationship among nation, state, and law within both secular and religious legal circles. According to classical theories about the relationship of nation to law, the nation gives birth to the state and the state’s task is to generate law reflecting the values of the nation. Yet,precisely who is th…

Basketball in the Key of Law: The Significance of Disputing in Pick-Up Basket…

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman’s Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in i…

Selected literature on radicalization and de-radicalization of terrorists: Mo…

“When, why, and how do people living in a democracy become radicalized to the point of being willing to use or directly support the use of terrorist violence against civilians, and when, why, and how might they de-radicalize and draw back from such action? The empirical basis for understanding the background factors and trigger events pushing or pulling people towards Islamist militancy is v…

American Bar Association Supplementary Guidelines for the Mitigation Function…

When a client faces a penalty of death, defense attomeys may call on social workers in many capacities: mitigation specialist, expert witness, consulting specialist, direct witness, or defense-initiated victim outreach worker. The American Bar Association set forth standards for capital defense attomeys, which led an interdiscipUnary team to produce the "Supplementary Guidelines for the Mitigat…

Do State Laws Concerning Homosexuals Reflect the Preeminence of Conservative-…

The present study was conducted to determine whether individual-level correlates of sexual prejudice (i.e., conservatism-liberalism, religious fundamentalism, educational levels, urbanism, income, and living in the South) are predictive at the state level of laws restricting homosexual behaviors and desires. Criterion 1 was a multifaceted index of state laws concerning gay men and lesbians; Cri…

Impact of texting laws on motor vehicular fatalities in the United States

Using a panel study design,we examined the effects of different types o f texting bans on motor vehicular fatalities.We used the Fatality Analysis Reporting System and a difference-in-differences approach to examine the incidence of fatal crashes in 2000 through 2010 in 48 US states with and w ith o u t texting bans.Age cohorts were constructed to examine the impact of these bans on age-specifi…

The Law Executive Branch Legal Analysis for National Security Policy: Who Con…

Legal interpretation of governmental authority in the national security realm has attracted extraordinary prominence recently, in light of constantly emerging revelations of controversial policies. Lawsuits seeking access under the Freedom of Information Act to confidential executive branch legal analysis justifying these policies have started in the federal courts, only to be met with refusals…

Carbon Outlasts The Law: States Walk The Constitutional Line

State carbon policies to control climate warming and our energy future are under legal attack. A successful barrage of litigation now invokes the dormant Commerce Clause and the Federal Power Act as interpreted through the Filed Rate Doctrine, as well as the Supremacy Clause of the U.S. Constitution, to challenge the legal validity and sustainability of these state carbon-based laws. California…

WHY THE GOOGLE BOOKS SETTLEMENT IS PROCOMPETITIVE

ABSTRACT Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of-copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifyin…

WHY (AND WHEN) JUDGES DISSENT: A THEORETICAL AND EMPIRICAL ANALYSIS

ABSTRACT This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call ‘‘dissent aversion,’’ which sometimes causes a judge not to dissent even when he disagrees with the majority opinion.We examine dissent aversion using data fromboth the federal courts of appeals and the U.S. Supreme Court…

WHO HANGS WHOM FOR WHAT? THE DEATH PENALTY IN JAPAN

ABSTRACT Japanese judges are least likely to hang a defendant for murder if they graduated from a high-status university, passed the bar-exam-equivalent quickly, or enjoy a fast-track career within the courts. “Panel composition effects” and other measures of collegiality seem unrelated to sentencing patterns. To explore the effect of judicial panel composition beyond the more-often-st…

WHENCE COMES SECTION ONE? THE ABOLITIONIST ORIGINS OF THE FOURTEENTH AMENDMENT

ABSTRACT The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the ‘‘radical’’ Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about ‘‘carpetbaggers’’…

WHAT IS LAW? A COORDINATION MODEL OF THE CHARACTERISTICS OF LEGAL ORDER

ABSTRACT Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this article, we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and inmanymodern sett…

UNCONSTITUTIONAL CONDITIONS QUESTIONS EVERYWHERE: THE IMPLICATIONS OF EXIT AN…

ABSTRACT Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal w…

TRIAL BY BATTLE

ABSTRACT For over a century England’s judicial system decided land disputes by ordering disputants’ legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and ec…

TRAYNOR (DRENNAN) VERSUS HAND (BAIRD):MUCH ADO ABOUT (ALMOST) NOTHING

ABSTRACT Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor–subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d 87(2), have had almost no impac…

THE ROLE OF PROBABILITY OF DETECTION IN JUDGMENTS OF PUNISHMENT

ABSTRACT In nine experiments—one a questionnaire given to Israeli judges, the rest on the World Wide Web—we examined the effect of probability of detection of an offense on judgments of punishment. When cases differing in probability were separated, we found almost no evidence for attention to probability (as found previously by others). When cases were presented next to each other, ho…

THE QUESTIONABLE CASE FOR SUBSIDIES REGULATION: A COMPARATIVE PERSPECTIVE

ABSTRACT ‘‘Subsidization’’ by member governments occurs in the U.S. federal system, the WTO, and the European Union. These three legal systems have responded very differently to the issues raised by subsidies, from the largely laissez-faire approach of the United States to the elaborate ‘‘state aid’’ rules of the EU to the intricate but weakly enforced rules of the WTO. Thi…

THE PRISONERS’ (PLEA BARGAIN) DILEMMA

ABSTRACT How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficu…

THE MEANING OF CONTRACTUAL SILENCE: A FIELD EXPERIMENT

ABSTRACT The limited capacity of lawmakers to intuit the unstated wishes of contracting parties constitutes a daunting obstacle to the formulation of majoritarian default rules. This paper presents a field experiment that prices consumers’ unstated understandings of contractual silence regarding warranty and return policies for a good. Used iPods were sold via auction on eBay.com with ra…

THE LAW’S DELAY: A TEST OF THE MECHANISMS OF JUDICIAL PEER EFFECTS

ABSTRACT The presence of “peer effects”—that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel—is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading the…

THE EFFECT OF UNIVERSAL HEALTH INSURANCE ON MALPRACTICE CLAIMS: THE JAPANESE …

ABSTRACT Japanese patients file relatively few medical malpractice claims. Most scholars try to explain this phenomenon by identifying ‘‘faults’’ in the Japanese judicial system. Largely, the faults they identify do not exist. Instead, a substantial part of the reason for the malpractice claiming patterns may lie in the national health insurance system. In order to contain the cost…

THE EASY CORE CASE FOR JUDICIAL REVIEW

ABSTRACT This paper defends judicial review on the ground that judicial review is necessary for protecting “a right to a hearing.” Judicial review is praised by its advocates on the basis of instrumentalist reasons; i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist justifi cat…

THE DISPENSABLE LIVES OF SOLDIERS

ABSTRACT Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. I offer two amendments: The…

THE DECISION TO AWARD PUNITIVE DAMAGES: AN EMPIRICAL STUDY

ABSTRACT Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether puniti…

THE CASE AGAINST FOREIGN TAX CREDITS

ABSTRACT In international tax policy debate, it is usually assumed that, if one chooses not to exempt residents’ foreign source income, the preferred system would offer foreign tax credits. This assumption is mistaken, given the bad incentives created by the credits’ marginal reimbursement rate (MRR) of 100 percent and the unpersuasiveness of common rationales for granting them, such as th…

TENANCY IN “ANTICOMMONS”? A THEORETICAL AND EMPIRICAL ANALYSIS OF CO-OWNE…

ABSTRACT This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resour…

SYSTEMIC HARMS AND SHAREHOLDER VALUE

ABSTRACT The financial crisis has demonstrated serious flaws in the corporate governance of systemically important financial firms. In particular, the norm that managers should seek to maximize shareholder value, as measured by the stock price, proves to be a faulty guide for managerial action in systemically important firms. This is not only because the failure of such firms will have spi…

SUBSIDIZING THE PRESS

ABSTRACT Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the profes…

STANDING THE TEST OF TIME: THE BREADTH OF MAJORITY COALITIONS AND THE FATE OF…

ABSTRACT Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit.Weconsider w…

SOCIAL NORMS IN THE COURTS OF ANCIENT ATHENS

ABSTRACT Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm e…

SHOULD COPYRIGHT OF ACADEMIC WORKS BE ABOLISHED?

ABSTRACT The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefi t from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have…

SHOULD BUSINESS METHOD INVENTIONS BE PATENTABLE?

ABSTRACT In this article, I define business method inventions and provide an economic framework to address the question of patentability raised in Bilski. A business method invention is the discovery of a commercial technique that firms can apply to address market opportunities. The initial implementation of a business method invention by firms is a Schumpeterian innovation. I advance seve…

RIGHTS TO DO GRAVE WRONG

ABSTRACT Rights to do grave wrong arise whenever the law permits conduct that ordinary morality severely reproaches. We examine one good reason, ignored by legal thought, why such rights develop: because their undoubted dangers are mitigated by extra-juridical encumbrances on their irresponsible exercise, establishing a normatively acceptable equilibrium. This complex of rights-cum-restrai…

REFORMING THE TAXATION AND REGULATION OF MUTUAL FUNDS: A COMPARATIVE LEGAL AN…

ABSTRACT Most Americans invest through mutual funds. An analysis of laws governing mutual funds shows that U.S. mutual funds are taxed less favorably and regulated more extensively than direct investments or other collective investments, including alternatives available only to the wealthy. The structure of U.S. regulation—of 70-year old proscriptive bright-line rules subject to SEC exem…

RATIONING LEGAL SERVICES

ABSTRACT There is a deepening crisis in the funding of legal services in the USA with cut backs in Legal Services Corporation and Interest on Lawyers Trust Account funding, rendering more visible the fact that there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. This article examines how existing Legal Service Providers (LSPs), bo…

RATIONAL JUDICIAL BEHAVIOR: A STATISTICAL STUDY

ABSTRACT This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, …

NOTICE FAILURE AND NOTICE EXTERNALITIES

ABSTRACT The emergence of intangible resources, such as intellectual property illuminates a previously unrecognized market failure: what we call a “notice externality.” The incentives of those claiming intellectual property diverge from the social interest. Inventors and creators can sometimes benefit from obfuscating the scope of rights and keeping others in the dark about their intel…

MORAL REALISM AND THE HEURISTICS DEBATE

ABSTRACT There has been substantial debate about whether certain forms of universal moral intuitions “exist” —intuitions that are non-reflective and undefended—and, if so, whether these intuitions have a privileged normative status. This debate arguably has implications for jurisprudential debates about the existence of “natural law.” This essay explores the underappreciated ho…

Many-Minds Arguments in Legal Theory

Abstract Many-minds arguments claim that in some way or another, groups of decisionmakers tend to make better decisions than individuals. This essay identifies five general and recurring problems with such arguments, as follows: (1) Whose minds? The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds. The number of minds endogenously in…

LEGAL ORIGIN OR COLONIAL HISTORY?

ABSTRACT Economists have documented pervasive correlations between legal origins, modern regulation, and economic outcomes around the world. Where legal origin is exogenous, however, it is almost perfectly correlated with another set of potentially relevant background variables: the colonial policies of the European powers that spread the “origin” legal systems through the world. We at…

Judicial Review of Class Action Settlements

Abstract This article proposes a simple and coherent approach to judicial review of class action settlements. Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and approving a settlement if it has a rational bas…

International Soft Law

Abstract: Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations f…

INSTITUTIONAL SUPPORT OF THE FIRM: A THEORY OF BUSINESS REGISTRIES

ABSTRACT Registering originative business contracts allows entrepreneurs and creditors to choose, and courts to enforce, market-friendly ‘‘contract’’ rules that protect innocent third parties when adjudicating disputes on subsequent contracts. This reduces information asymmetry for third parties, which enhances impersonal trade. It does so without seriously weakening property right…

IMPOSSIBILITY, IMPRACTICABILITY, AND FRUSTRATION—PROFESSOR GOLDBERG CONSTRU…

ABSTRACT Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading fi gure in the law-and-economics of contracts, has now published a counter-article, “ Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports …