Journal of Legal Analysis最新文献

{"title":"Introduction: Political Risk and Public Law","authors":"Adrian Vermeule","doi":"10.1093/JLA/LAS007","DOIUrl":"https://doi.org/10.1093/JLA/LAS007","url":null,"abstract":"On December 15-16, 2011, Harvard Law School convened a conference on “Political Risk and Public Law.” A special issue of the Journal of Legal Analysis will be devoted to publishing papers on this topic by Jon Elster, Edward Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim is to introduce a new set of questions about public law and a new analytical framework for thinking about those questions. The premise of the enterprise is that constitutions and other instruments of public law may fruitfully be viewed as devices for regulating political risks. Large literatures in law, economics, political science and policy studies examine first-order risks that arise from technology, the market, or nature. By contrast, constitutions and foundational statutes, such as the Administrative Procedure Act, may be understood as devices for regulating second-order risks. These are risks that arise from the design of institutions, the allocation of legal and political power among given institutions, and the selection of officials to staff those institutions. This perspective employs the framework of risk analysis elaborated by many disciplines across the social and policy sciences. The framework promises new insights for public law. Constitutional actors have often spoken the prose of risk regulation without knowing it, offering arguments about constitutional and institutional design that implicitly posit second-order risks and offer institutional prescriptions for managing those risks. By bringing the analytic structure of those arguments to the surface, political risk analysis promises to allow a more intelligent description and evaluation of the major problems of public law.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1 1","pages":"1-6"},"PeriodicalIF":2.2,"publicationDate":"2012-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90527218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The First Amendment and Political Risk","authors":"M. Tushnet","doi":"10.1093/JLA/LAS005","DOIUrl":"https://doi.org/10.1093/JLA/LAS005","url":null,"abstract":"Speech can directly inflict harm, and can increase the risk that harm will occur. irst Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. Like all risks, First Amendment risk varies along several dimensions. This Essay focuses on three: distribution of risk, magnitude of risk, and magnitude of social benefit.Consideration of the institutional relationship between courts and legislatures is more central to analyzing judicially developed free speech doctrine than is a direct assessment of risk, its magnitude and distribution, and the social benefits of speech. Courts cannot completely avoid such direct assessments, but after they make a rough judgment about these matters, they must consider the institutional question of whether, and more important how, they should respond when their assessments differ from the legislature’s. Vince Blasi’s classic article, The Pathological Perspective and the First Amendment, argued that First Amendment doctrine rested on the accurate view that courts could reliably identify certain pathologies in the legislative process that predictably generated systematically excessive legislative assessments of the degree to which speech increased the risk of harm. This Essay addresses a different pathology, located in the judicial branch rather than the legislative one. I motivate the argument by describing several cases in which the courts’ assessment of the risk that speech causes harm seems mistaken, either because the courts seem to be mistaken in thinking that the legislature’s estimates of the risk of harm are excessive or because the courts are insensitive to questions about the distribution of harm. In conjunction with that description I offer a diagnosis of the judicial pathology, which, following Duncan Kennedy, I call the rule-ification of doctrine, that is, the tendency over time for courts to replace doctrine articulated in the form of standards with doctrine articulated in the form of rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules. I conclude with a discussion of the obvious treatment, given that diagnosis – the injection of standards into the rule-ified system. I observe, though, that such an injection might not occur for the reasons that lead courts to rule-ify, and that in any event the tendency to rule-ification will assert itself even after an injection of standards.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"21 1","pages":"103-130"},"PeriodicalIF":2.2,"publicationDate":"2012-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78029294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE POLITICAL RISKS (IF ANY) OF BREAKING THE LAW","authors":"F. Schauer","doi":"10.1093/JLA/LAS010","DOIUrl":"https://doi.org/10.1093/JLA/LAS010","url":null,"abstract":"Is breaking the law a politically risky act for politicians and other public officials? The question is especially important in the context of legislators and high executive officials who, for reasons of immunity or otherwise, are not subject to formal legal sanctions when they break the law. In such contexts, we might think that various other repercussions would serve in the place of formal legal sanctions, such that violating the Constitution or the law would entail tangible political, reputational, and social risks. Yet a raft of examples suggests, albeit not definitively, that violating the law qua law is not ordinarily subject to non-legal sanctions. The electorate, the media, and most other potential sources of social and political sanctions reward good policy choices and sanction bad ones, but the very fact of illegality, except possibly by increasing the sanctions for bad policy choices that are also illegal, appears to play at most a small role in constraining the choices of a large group of the most influential and visible American public officials.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"114 1","pages":"83-101"},"PeriodicalIF":2.2,"publicationDate":"2012-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90195890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scholars' Briefs and the Vocation of a Law Professor","authors":"R. Fallon","doi":"10.1093/JLA/LAS002","DOIUrl":"https://doi.org/10.1093/JLA/LAS002","url":null,"abstract":"This article examines the increasingly common phenomenon of \"scholars' briefs\" in which collections of law professors appear as amici curiae in litigation before a court. Arguing that many professors compromise their integrity by joining such briefs too promiscuously, the article proposes standards that professors should insist upon before signing amicus briefs that they do not write. The article's methodology involves comparisons among various roles that law professors sometimes play and the distinctive moral and ethical standards appropriate to each. Besides a thorough discussion of scholars' briefs, the article includes broader analysis of law professors' role-based ethical obligations.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"15 5 1","pages":"223-269"},"PeriodicalIF":2.2,"publicationDate":"2012-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91216597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hybrid Judicial Career Structures: Reputation Versus Legal Tradition","authors":"Nuno Garoupa, Tom Ginsburg","doi":"10.1093/JLA/LAR004","DOIUrl":"https://doi.org/10.1093/JLA/LAR004","url":null,"abstract":"Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"26 1","pages":"411-448"},"PeriodicalIF":2.2,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86124234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A New Publisher","authors":"J. Ramseyer, S. Shavell, R. Jackson","doi":"10.1093/JLA/LAR001","DOIUrl":"https://doi.org/10.1093/JLA/LAR001","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"126 1","pages":"377-377"},"PeriodicalIF":2.2,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90399936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tenancy In “Anticommons”? A Theoretical and Empirical Analysis of Co-Ownership","authors":"Yun-chien Chang","doi":"10.1093/JLA/LAS011","DOIUrl":"https://doi.org/10.1093/JLA/LAS011","url":null,"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 an 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 resource more efficiently. Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5% of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5% of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"6 1","pages":"515-553"},"PeriodicalIF":2.2,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82494959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Traynor (Drennan) Versus Hand (Baird) Much Ado About (Almost) Nothing","authors":"Victor P. Goldberg","doi":"10.1093/JLA/LAR003","DOIUrl":"https://doi.org/10.1093/JLA/LAR003","url":null,"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 paper 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 impact outside that narrow area. Moreover, almost all the cases involve public construction projects - private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public contract law is encrusted with regulations, which courts and contracts scholars have ignored. The result is a peculiar phenomenon - a supposedly general contract doctrine that applies only in a specific context, but which ignores the features of that context.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"71 1","pages":"539-585"},"PeriodicalIF":2.2,"publicationDate":"2011-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85172564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should Business Method Inventions be Patentable","authors":"Daniel F. Spulber","doi":"10.1093/JLA/3.1.265","DOIUrl":"https://doi.org/10.1093/JLA/3.1.265","url":null,"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 several arguments in favor of business method patentability. Business method inventions are an important foundation for entrepreneurship and a channel for the commercialization of scientific and technological inventions. IP protections for business method inventions are essential for economic efficiency, including incentives for invention, efficient allocation of inventions, and transaction efficiencies in the market for discoveries. Business method inventions are significant because they are the foundation of what I term the ‘‘Business Revolution’’: the augmentation and replacement of human effort in business transactions by computers, communications systems, and the Internet. I conclude that the patent system should continue to provide intellectual property protections for business method inventions just as it does for other types of inventions.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"10 1","pages":"265-340"},"PeriodicalIF":2.2,"publicationDate":"2011-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76603301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trial by Battle","authors":"P. Leeson","doi":"10.1093/JLA/3.1.341","DOIUrl":"https://doi.org/10.1093/JLA/3.1.341","url":null,"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 economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle’s ‘‘auctions’’ permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction. ‘‘When man is emerging from barbarism, the struggle between the rising powers of reason and the waning forces of credulity, prejudice, and custom, is full of instruction.’’ —Henry C. Lea, Superstition and Force (1866, 73).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"22 1","pages":"341-375"},"PeriodicalIF":2.2,"publicationDate":"2011-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79121962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}