Yale Law School最新文献

{"title":"Best interest of creditors test in the EU Directive 2019/1023 on Company Restructuring. Proposed reform of Spanish Insolvency Law. BIoC-Test","authors":"E. Sanjuan","doi":"10.2139/ssrn.3914587","DOIUrl":"https://doi.org/10.2139/ssrn.3914587","url":null,"abstract":"This paper sets out a comparison between the current regulation of the Best Interests of Creditors Rule (BIoC-Test) as it currently exists in the Consolidated Text 1/2020 of the Insolvency Act in Spain and that proposed in the amended proposal made public by the Spain’ Government in July 2021. All of this in relation to the concept that EU Directive (EU) 2019/1023 includes in this respect. This comparative study attempts to delimit this rule and the reasons for challenging it.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134142819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MDL Revolution","authors":"Abbe R. Gluck, E. Burch","doi":"10.2139/ssrn.3737728","DOIUrl":"https://doi.org/10.2139/ssrn.3737728","url":null,"abstract":"Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal. Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to it—MDL is finally in public view. State attorneys general have resisted the opioid MDL’s intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistence to Opiates has dispersed some of the MDL’s early power, that resistence itself has come in the form of unusual procedural mechanisms. MDL is designed for individual cases—giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL’s mode of coordination—from its anti-federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules—chafes at almost every aspect of procedure’s traditional rules and values. MDL is not-so-secretly changing the face of civil procedure. This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure’s core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modern procedural tensions manifesting in many forms? Either way, it begs the question: What do we expect of litigation on this scale? We recognize that MDL fills important gaps by providing access to courts but argue for some return to regular order to safeguard due process, federalism, and sovereignty. We suggest specific shifts—from more pretrial motions to new paths for appellate review, attorney selection, and jurisdictional redundancy—where the normative balance seems particularly out of whack; shifts we believe are in line with the spirit of Federal Rule 1’s own inherent paradox—the ideal of “just, speedy and inexpensive procedure.” We also offer the first comprehensive analysis of the historic suits over the opioid crisis. Opiates is the first MDL that pits localities against their own state attorneys general in a struggle for litigation control. Its judge has publicly stated that solving a national health crisis that Congress dumped in his lap is differ","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125341291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is Administrative Law at War With Itself?","authors":"J. Mashaw","doi":"10.2139/ssrn.3688558","DOIUrl":"https://doi.org/10.2139/ssrn.3688558","url":null,"abstract":"Administrative law now features two main tendencies: presidential control of administration and a demand for comprehensive rationalization of administrative decision making. Thus reason increasingly contends with politics as the basis for the legitimation of administrative action. This paper argues that both vision of administrative legitimacy appeal to democratic values, but imagine quite different visions of democratic theory. The competition between these models of administrative legitimacy can only be managed, not resolved. This is the challenge of 21st century administrative Law, but a challenge that simultaneously reveals a complexly articulated system of democratic accountability embedded in contemporary administrative practice.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115167309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wrong Turn; Agricultural Policy in Iran","authors":"O. Mohammadi","doi":"10.2139/ssrn.3526127","DOIUrl":"https://doi.org/10.2139/ssrn.3526127","url":null,"abstract":"Food security is a global concern. Iranian farmers have the obligation to provide food but they don’t have the right to food. International restrictions combined with incorrect national schematization put them in a situation that they can’t afford to buy their own products just to endure to the next harvest season. With socioeconomic analysis of legal instruments, this article aims: to unveil misguided policies and their effects on agricultural activities in Iran and to provide a customized solution based on the idea of family farming.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133357481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mayorías económicas y regulación financiera: una mirada desde la teoría de planes (Economic Majorities and Financial Regulation: A Planning Theory Approach)","authors":"José Miguel Camacho-Castro","doi":"10.2139/ssrn.3443673","DOIUrl":"https://doi.org/10.2139/ssrn.3443673","url":null,"abstract":"<b>Spanish Abstract:</b> El sector financiero de la economía tiene una alta influencia en la vida pública contemporánea. Sus planes y los planes públicos no son siempre compatibles. Se pretende describir en este escrito el mecanismo a través del cual esta incompatibilidad termina resuelta a favor de los planes financieros privados. Para lograrlo, se hará uso de la teoría jurídica de planes de Scott J. Shapiro, poniéndola en discusión y releyéndola a la luz de los problemas que se originan por el constante encuentro, no siempre pacífico, entre planes públicos y privados. En clave interpretativa y a través del análisis documental, se muestra que el poder judicial tiene un crucial papel por jugar en la construcción del equilibrio necesario entre los planes financieros privados y los públicos. El reto al poder judicial se concreta en la necesidad de ejercer control jurídico sobre los planes privados en general, y sobre los planes financieros privados en particular.<br><br><b>English Abstract:</b> The financial sector has a high influence in contemporary public policy. The financial and public plans are not always compatible. This paper aims to describe how the financial plans prevails over public plans most of the time. I will use Scott J. Shapiro’s planning theory, discussing and rereading it under the light of conflict between public and private plans. This will show that judiciary has a crucial role to play in building necessary balance between private-financial and public plans. The challenge to the judiciary is reflected in the need to exercise legal control over private-financial plans.<br><br>","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131855563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Penalizing Lies and Optimal Monitoring","authors":"C. Salas","doi":"10.2139/ssrn.3399161","DOIUrl":"https://doi.org/10.2139/ssrn.3399161","url":null,"abstract":"It has been established that monitoring schemes that allow self-reports of behavior can achieve superior results when the scheme induces truthful reporting (Kaplow and Shavell 1994). Often in reality, however, monitoring schemes do not enjoy the flexibility necessary to achieve truthful reports. In this paper we show how and why allowing self-reports can nevertheless improve on the monitor’s problem by way of penalizing lies when detected. Results show that, for any monitoring probability and sanction function, we can achieve actions closer to the first- best solution as well as higher levels of social welfare.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129005542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Environmental Pollution and Human Rights Violations by Multinational Corporations","authors":"P. Wijesinghe","doi":"10.2139/ssrn.3164142","DOIUrl":"https://doi.org/10.2139/ssrn.3164142","url":null,"abstract":"In the modern corporate and market-oriented world, multinational corporations have become the most important and influential entity out of all the business related parties around the world. Multinational corporations are stronger due to their huge monetary assets which most of the times defeat the monetary capacities of some countries. Their wealth has given them an opportunity to gain the power against almost all the entities in the world. Even though these multinational corporations are wealthier and powerful, in order to increase further benefits and power by competing with competitors in the markets, these multinational corporations follow numerous illegal activities. These illegal activities have a huge negative influence towards the society. Crimes which are conducted by individuals do harm the society, yet, crimes which are conducted by multinational corporations harm the society in a larger scale. Multinational corporations are not limited to one country. The main office or the headquarters of the company is located in one country while the subsidiaries have been located in many other countries. Hence, corporate crimes affect not only the country or the society which its main office is located, but also every other country which has their subsidiaries. Even though there are many laws which prevent and penalize crimes, it is really hard for the law enforcement authorities to execute multinational corporations compared to individuals. Currently, environmental pollution and human rights violations by multinational corporations have become major issues which influence the society with negative implications. In this paper, the writer critically discusses the environmental pollution and human rights violations by multinational corporations with few examples.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127879953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Disaggregating the Court: A Methodological Survey of Research on the Supreme People's Court of China","authors":"Taisu Zhang","doi":"10.1163/25427466-0020002","DOIUrl":"https://doi.org/10.1163/25427466-0020002","url":null,"abstract":"This essay is an attempt to sort through the recent academic literature on the Supreme People’s Court of China. It separates existing studies into three basic categories: those that study what the Court is allowed to do, those that study what it actually does, and those that study why it does those things. Moving from the first category to the second and third is, in many ways, a progression from a predominantly formalist method to more realist ones. The essay argues that the field suffers from a lack of rigorous political economy modeling, and that this affects not only the thoroughness of studies in category three, but also those in categories one and two. Remedying these problems will depend on whether future scholarship can successfully make use of the theoretical and empirical tools developed by political science and institutional economics. Most importantly, the field needs to develop a usable model of individual judge behavior, based on their material incentives, political aspirations, and ideological commitments, which can then provide the foundation for modeling of the Court as an institution. At the early stage, ethnography and biographical analysis may be more useful than quantitative analysis.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132948265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trade Agreements, Patents, and Drug Prices: Continuing the Debate","authors":"A. Kapczynski, B. Sampat, Kenneth C. Shadlen","doi":"10.2139/ssrn.2933574","DOIUrl":"https://doi.org/10.2139/ssrn.2933574","url":null,"abstract":"The upward-ratcheting of patent protection through trade agreements has generated significant concerns about potential effects on prices of drugs and access to medicines in developing countries. The Trans-Pacific Partnership (TPP) included even more extensive pharmaceutical patent provisions than any before. While President Trump withdrew the US as a signatory to the TPP, the potential for new trade agreements to raise the same set of concerns generated by the TPP remains high. Previous work assessing the TPP argued that new data on pharmaceutical expenditures (and other measures) from countries with recent trade agreements with the U.S. indicated that concerns about pharmaceutical patent protection and drug prices are overblown and it may be time to move on from these debates. Here we argue that the analysis supporting these claims is misleading because it fails to look at the right drugs at the right points in time, overlooks the temporal dimensions of implementation of provisions in previous trade agreements, and ignores the broader context in which trade agreements are negotiated and implemented. Much more empirical work is needed to understand the impact of previous trade agreements, and the effects of stronger patent protections in developing countries on innovation, access, and prices. Some of the crucial analyses may not be possible until the provisions in the agreements take full effect, which could take some time especially in developing countries where patenting is relatively new.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128169095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stuck! The Law and Economics of Residential Stability","authors":"David Schleicher","doi":"10.2139/ssrn.2896309","DOIUrl":"https://doi.org/10.2139/ssrn.2896309","url":null,"abstract":"America has become a nation of homebodies. Rates of inter-state mobility, by most estimates, have been falling for decades. Even research that does not find a general decline finds that inter-state mobility rates are low among disadvantaged groups and are not increasing despite a growing connection between moving and economic opportunity. Perhaps more important than changes in overall mobility rates are declines in mobility in situations and places where it is particularly important. People are not leaving areas hit by economic crises, with unemployment rates and low wages lingering in these areas for decades. And people are not moving to rich regions where the highest wages are available. This Article advances two central claims. First, declining inter-state mobility rates create problems for federal macroeconomic policy-making. Low rates of inter-state mobility make it harder for the Federal Reserve to meet both sides of its “dual mandate” of stable prices and maximum employment; impair the efficacy and affordability of federal safety net programs that rely on state and local participation; and reduce both levels of wealth and rates of growth by inhibiting agglomeration economies. While determining an optimal rate of inter-state mobility is difficult, policies that unnaturally inhibit inter-state moves worsen national economic problems.Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of legal barriers to inter-state mobility. Land-use laws and occupational licensing regimes limit entry into local and state labor markets; differing eligibility standards for public benefits, public employee pension policies, homeownership subsidies, state and local tax regimes, and even basic property law rules reduce exit from states and cities with less opportunity; and building codes, mobile home bans, federal location-based subsidies, legal constraints on knocking down houses and the problematic structure of Chapter 9 municipal bankruptcy all limit the capacity of failing cities to “shrink” gracefully, directly reducing exit among some populations and increasing the economic and social costs of entry limits elsewhere. Put together, the Article shows that big questions of macroeconomic policy and performance turn on the content of state and local policies usually analyzed using microeconomic tools. Many of the legal barriers to inter-state mobility emerged or became stricter during the period in which inter-state mobility declined. While assigning causality is difficult, public policies developed by state and local governments more interested in local population stability than in ensuring successful macroeconomic conditions either generated or did not push back against falling mobility rates. The Article concludes by suggesting ways the federal government could address falling mobility rates.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124646170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}