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Do Lawyers Really Believe Their Own Hype and Should They?: A Natural Experiment 律师真的应该相信自己的宣传吗?一个自然实验
Yale Law School Pub Date : 2011-07-12 DOI: 10.2139/ssrn.1640062
Zev J. Eigen, Yair Listokin
{"title":"Do Lawyers Really Believe Their Own Hype and Should They?: A Natural Experiment","authors":"Zev J. Eigen, Yair Listokin","doi":"10.2139/ssrn.1640062","DOIUrl":"https://doi.org/10.2139/ssrn.1640062","url":null,"abstract":"Existing research suggests that practicing litigators are too confident in the merits of their clients’ cases. But practicing attorneys often self select (1) the area of law in which they practice, (2) the side on which to practice within that area, (3) law firms with whom they practice, and (4) the clients they represent. We explore whether, after stripping away these selection-biases, legal advocates are still overconfident in their clients’ claims by exploiting a natural experiment involving participants in moot court competitions at three U.S. law schools. Students are randomly assigned to advocate for either petitioner or respondent, so none of the selection-bias problems above are present. We find that following participation in moot court contests, students overwhelmingly perceive that the legal merits favor the side that they were randomly assigned to represent. We also find that overconfidence is associated with poorer performance in advocacy as measured by legal writing instructors. Theoretical and practical implications are discussed.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131993256","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}
引用次数: 11
Dividend Taxation in Europe: When the ECJ Makes Tax Policy 欧洲的股息税:当欧洲法院制定税收政策时
Yale Law School Pub Date : 2007-08-31 DOI: 10.54648/cola2007139
A. Warren, M. Graetz
{"title":"Dividend Taxation in Europe: When the ECJ Makes Tax Policy","authors":"A. Warren, M. Graetz","doi":"10.54648/cola2007139","DOIUrl":"https://doi.org/10.54648/cola2007139","url":null,"abstract":"This article analyzes a complex line of recent decisions in which the European Court of Justice has set forth its vision of a nondiscriminatory system for taxing corporate income distributed as dividends within the European Union. We begin by identifying the principal tax policy issues that arise in constructing a system for taxing cross-border dividends and then review the standard solutions found in national legislation and international tax treaties. Against that background, we examine in detail a dozen of the Court's decisions, half of which have been handed down since 2006. Our conclusion is that the ECJ is applying a standard of nondiscrimination to evaluate national tax laws in a manner totally divorced from the underlying tax policy norms that produced the legislation at issue. Some, but not all, of the decisions seem to require nondiscrimination based on the destination, but not the origin, of corporate investment. The result is a jurisprudence that fails to hold together substantively, functionally, and rhetorically. In many instances, this result follows from largely formalistic distinctions made by the Court, such as whether a withholding tax on dividends should be considered corporate or shareholder taxation.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128397483","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}
引用次数: 32
United States Courts and the Optimal Deterrence of International Cartels: A Welfarist Perspective on Empagran 美国法院与国际卡特尔的最优威慑:福利主义视角下的Empagran
Yale Law School Pub Date : 2007-07-01 DOI: 10.2139/SSRN.963394
A. Klevorick, A. Sykes
{"title":"United States Courts and the Optimal Deterrence of International Cartels: A Welfarist Perspective on Empagran","authors":"A. Klevorick, A. Sykes","doi":"10.2139/SSRN.963394","DOIUrl":"https://doi.org/10.2139/SSRN.963394","url":null,"abstract":"E. Hoffmann-La Roche Ltd. v. Empagran S.A. concerned a private antitrust suit for damages against a global vitamins cartel. The central issue in the litigation was whether foreign plaintiffs injured by the cartel’s conduct abroad could bring suit in U.S. court, an issue that was ultimately resolved in the negative. We take a welfarist perspective on this issue and inquire whether optimal deterrence requires U.S. courts to take subject matter jurisdiction under U.S. law for claims such as those in Empagran. Our analysis considers, in particular, the arguments of various economist amici in favor of jurisdiction and arguments of the U.S. and foreign government amici against jurisdiction. We explain why the issue is difficult to resolve, and identify several economic concerns, which the amici did not address, that may counsel against jurisdiction. We also analyze the legal standard enunciated by the Supreme Court and applied on remand by the DC Circuit, and we argue that its focus on \"independent\" harms and \"proximate\" causation is problematic and does not provide an adequate economic foundation for resolving the underlying legal issues. A revised version of this paper is forthcoming in ANTITRUST STORIES from Foundation Press, edited by Daniel Crane and Eleanor Fox.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128356138","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}
引用次数: 9
Information Power: The Information Society from an Antihumanist Perspective 信息权力:反人道主义视角下的信息社会
Yale Law School Pub Date : 2006-11-11 DOI: 10.2139/ssrn.1648624
J. Balkin
{"title":"Information Power: The Information Society from an Antihumanist Perspective","authors":"J. Balkin","doi":"10.2139/ssrn.1648624","DOIUrl":"https://doi.org/10.2139/ssrn.1648624","url":null,"abstract":"This short essay, written for a book about globalization and information policy, argues that globalized information networks create new forms of power that transcend people's deliberate design. Digital information technologies enmesh individuals, groups, and nations in proliferating networks of power that they neither fully understand nor fully control, and that are controlled by no one in particular. These promote the proliferation of information production, information technologies, and information control mechanisms whether or not this serves human values.The essay offers three ways of looking at this phenomenon: through the theory of memetics, through the metaphor of a single global entity or organism, and through a Foucauldian proliferation of power model. Each perspective suggests that larger forces of technological development and information production are reshaping and possibly even sacrificing human values and human interests to serve goals that no human being in particular seeks. The goal of this essay is not to deny the role that human agency plays in creating the world we inhabit. Nor does it reject the importance of human values and interests as goals of information policy. Quite the contrary: It identifies features of our current condition that we might otherwise overlook. If we care about promoting human freedom and human flourishing in a globalized information society, we need to think about all the various forces that might affect them.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116168311","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}
引用次数: 2
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry 法律的迁移:美国例外论、沉默对话和联邦制的多重入境口岸
Yale Law School Pub Date : 2006-04-11 DOI: 10.2307/20455664
J. Resnik
{"title":"Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry","authors":"J. Resnik","doi":"10.2307/20455664","DOIUrl":"https://doi.org/10.2307/20455664","url":null,"abstract":"Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of foreign law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the foreign sources become lost in translation, and the new rights become constitutive elements of American identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs - as that which is foreign is domesticated through several routes.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125566111","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}
引用次数: 57
Pareto Damaging Behaviors 帕累托破坏行为
Yale Law School Pub Date : 2005-05-15 DOI: 10.2139/ssrn.748404
Raymond J. Fisman, Shachar Kariv, Daniel Markovits
{"title":"Pareto Damaging Behaviors","authors":"Raymond J. Fisman, Shachar Kariv, Daniel Markovits","doi":"10.2139/ssrn.748404","DOIUrl":"https://doi.org/10.2139/ssrn.748404","url":null,"abstract":"This paper reports a rigorous experimental test of Pareto-damaging behaviors. We introduce a new graphical representation of dictator games with step-shaped sets of feasible payoffs to persons self and other on which strongly Pareto efficient allocations involve substantial inequality. The non-convexity and sharp nonlinearity of the Pareto frontier allow us systematically to classify Pareto-damaging allocations: as self-damaging or other-damaging and as inequality-increasing or inequality-decreasing. We find that self and other Pareto-damaging behaviors occur frequently even in circumstances - dictator games - that do not implicate reciprocity or strategic interaction. We also find patterns in this behavior, most notably that behavior that Pareto damages self always reduces inequality whereas behavior that Pareto damages other usually increases inequality.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115398644","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}
引用次数: 5
Is Regulatory Competition a Problem or Irrelevant for Corporate Governance? 监管竞争对公司治理是一个问题还是无关紧要?
Yale Law School Pub Date : 2005-03-27 DOI: 10.2139/ssrn.693484
R. Romano
{"title":"Is Regulatory Competition a Problem or Irrelevant for Corporate Governance?","authors":"R. Romano","doi":"10.2139/ssrn.693484","DOIUrl":"https://doi.org/10.2139/ssrn.693484","url":null,"abstract":"This article provides an analysis of why regulatory competition in corporate law has operated, for the most part, successfully in the United States, and critiques the position of commentators who are skeptical of the significance and extent of state competition. The article begins by setting out the context in which regulatory competition has been most recently criticized, the U.S. Congress's response to corporate accounting scandals in the Sarbanes-Oxley Act, and by briefly noting how the problematic features of that legislative response underscore the benefits of regulatory competition. It then evaluates recent criticisms of regulatory competition that focus on the role of the federal government, or the incentives of states other than the leading incorporation state, Delaware, and conclude that U.S. corporate law is not the product of state competition. The article contends that these permutations on the state competition debate do not provide a satisfactory positive explanation of the behavior or the influence of the states and federal government. The minimum policy implication of the analysis is that it would be imprudent for policymakers to overlook the competitive regulatory experience in U.S. corporate law when assessing the approach to take to company and securities law. Prepared for the Special Issue of the Oxford Review of Economic Policy on Corporate Governance and the Corporate Governance Conference at the Said Business School, University of Oxford, January 28, 2005.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134101428","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}
引用次数: 62
The Latest Misfires in Support of the More Guns, Less Crime Hypothesis 支持枪支越多,犯罪越少假说的最新失败
Yale Law School Pub Date : 2003-04-01 DOI: 10.2139/ssrn.392584
J. Donohue, I. Ayres
{"title":"The Latest Misfires in Support of the More Guns, Less Crime Hypothesis","authors":"J. Donohue, I. Ayres","doi":"10.2139/ssrn.392584","DOIUrl":"https://doi.org/10.2139/ssrn.392584","url":null,"abstract":"John Lott, Florenz Plassman, and John Whitley (\"LPW\") have criticized our article, Shooting Down the More Guns, Less Crime Hypothesis, by arguing that some aggregated statistical models that we criticized support their \"more guns, less crime\" claim (which leads them to say we \"misread\" our results) and by offering new regressions on an expanded county data set. We maintain, however, as we did in our original article, that the aggregated models favored by LPW are flawed by a serious selection effect problem (and in any event we show that the findings LPW point to are undermined by controls for pre-existing state trends in crime). Indeed, we illustrate that simply dropping the states that adopted concealed carry laws during the crack epidemic leads to estimates that concealed carry laws strongly increase crime (which underscores the importance of the omitted crack phenomenon in driving the initial Lott and Mustard results). Moreover, we discovered that the ostensibly supportive results obtained by LPW after extending their county set to 2000 were caused by some mis-coding errors they made in extending their data. When we correct these errors, their findings are reversed: LPW's preferred spline model fails to generate a statistically significant effect for any crime category, while the only significant results in the other possible models show the laws to be associated with increases in various property crimes (and in one case for rape).","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114464271","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}
引用次数: 57
Optimal Penalties in Contracts 契约中的最优惩罚
Yale Law School Pub Date : 2002-12-12 DOI: 10.2139/ssrn.354781
A. Edlin, Alan G. Schwartz
{"title":"Optimal Penalties in Contracts","authors":"A. Edlin, Alan G. Schwartz","doi":"10.2139/ssrn.354781","DOIUrl":"https://doi.org/10.2139/ssrn.354781","url":null,"abstract":"Contract law’s liquidated damage rules prevent enforcement of contractual damage measures that require the promisor, if it breaches, to transfer to the promisee a sum that exceeds the net gain the promisee expected to make from performance; but these rules permit the promisor to transfer less than the promisee’s expectation. We define a contractual damage multiplier as any number between zero and infinity by which the promisee’s expected gain -- its expectation interest -- is multiplied. Multipliers of one or less thus comply with the liquidated damage rules while multipliers that exceed one do not; the high multipliers are unenforceable penalties. This paper shows that multipliers of any size can be efficient or inefficient, depending on the parties’ purposes in creating them. For example, a multiplier that exceeds one will decrease welfare if used by a seller with market power to deter entry; but will increase welfare if used by parties to induce efficient relation specific investment. As a consequence, a court should inquire, not into the size of the multiplier, but into the purpose the multiplier serves for the parties. The practical implication of this view is that it no longer should be a sufficient defense to an action to enforce a contractual damage measure that the parties’ multiplier exceeded one.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122857635","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}
引用次数: 46
Patent Oppositions 专利异议
Yale Law School Pub Date : 2002-10-01 DOI: 10.2139/ssrn.351900
J. Levin, R. Levin
{"title":"Patent Oppositions","authors":"J. Levin, R. Levin","doi":"10.2139/ssrn.351900","DOIUrl":"https://doi.org/10.2139/ssrn.351900","url":null,"abstract":"In recent years, patent protection has extended into new areas, giving rise to serious concern about the lack of clear guidelines for patentability. We analyze the effect of introducing a patent opposition process that would allow patent validity to be challenged directly after a patent is granted. In many cases, such a system would avoid costly litigation at a later date. In other cases, the opposition process would increase the cost of conflict resolution, but would also reward holders of valid patents and limit the rewards to invalid patents. Our analysis suggests significant positive welfare gains from the introduction of a patent opposition process.","PeriodicalId":171240,"journal":{"name":"Yale Law School","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125827903","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}
引用次数: 0
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