Northwestern University Law Review最新文献

{"title":"Genetic discrimination, genetic privacy: rethinking employee protections for a brave new workplace.","authors":"Pauline T Kim","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24535486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Vote on Taxes","authors":"K. Stark","doi":"10.2139/SSRN.288569","DOIUrl":"https://doi.org/10.2139/SSRN.288569","url":null,"abstract":"In recent years, several states have adopted so-called \"Right to Vote on Taxes\" initiatives - i.e., constitutional amendments requiring voter approval for any new or increased taxes imposed by local governments. In this Article, Professor Stark traces the history of these political developments and investigates the normative question of what role voter approval requirements should play within a fiscal constitution designed to limit the taxing powers of local governments. Advocates of a right to vote on taxes have premised their arguments on a libertarian concern for \"taxpayer consent\" - taxpayers themselves should have ultimate authority over their fiscal destiny. Yet even if one accepts taxpayer consent as a legitimate principle of fiscal governance, it is not clear that voter approval requirements advance that rationale, given the existing structure of the local tax base. Through an examination of the median voter's tax price for a variety of common local levies, Stark highlights those features of the local tax base that result in a divergence between those who vote on taxes and those who pay them. Where this divergence is substantial, the libertarian case for tax voting is the weakest. In order for the \"taxpayer consent\" rationale to have any traction, Stark argues that there must be a substantial correspondence between the population burdened by the tax and those who are empowered to vote does the libertarian. This analysis suggests a previously unexplored link between libertarian notions of taxpayer consent and an emerging literature in public finance economics concerning the optimal assignment of taxing authority to local governments. This literature has generally emphasized the efficiency gains from requiring local governments to rely primarily on taxes on their own residents, as opposed to source-based or other, more easily exportable taxes. Drawing on this literature, Stark argues for a new division of labor for the different types of tax limitation devices - if a state chooses to limit the taxing power of local governments, voter approval requirements should be used for residence-based taxes or the residential property tax, while alternative limitations may be more appropriate for those taxes with incidence effects that are less certain or more dispersed. Notably, California has adopted exactly the opposite approach, imposing direct limitations on the property tax and requiring voter approval for a variety of miscellaneous sales and business taxes. The Article then addresses the central normative question underlying the right to vote on taxes: even if the local tax structure could be reformulated in the manner suggested, should states adopt voter approval requirements for new or increased taxes? While recognizing the natural reluctance of liberal-minded scholars to endorse libertarian objectives, Stark suggests that there may nonetheless be value in pursuing a right to vote on taxes. To investigate this possibility, he develops a prelim","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68417650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The End of Theory","authors":"Michael J. Gerhardt","doi":"10.7551/mitpress/11054.003.0008","DOIUrl":"https://doi.org/10.7551/mitpress/11054.003.0008","url":null,"abstract":"Book Review THE END OF THEORY FREEDOM AND TIME: A THEORY OF CoNSTITUTIONAL SELF-GOVERNMENT By Jed Rubenfeld. Yale University Press, 2001. INTRODUCTION Imagine how you would answer the following question: \"What is the central problem in constitutional law?\" This question is routine to constitutional scholars, whose most common answer is the \"counter-majoritarian difficulty,\"' Alexander Bickel's classic phrase for the dilemma posed by unelected federal judges' interference with the decisions of democratically elected, politically accountable authorities. Imagine, however, that the answer to this difficulty turns out to depend on the resolution of an entirely different issue-the legitimacy of the Constitution's binding authority over time-that can be answered only by reference to a source other than any of those conventionally consulted, like the text, original understanding, or structure of the Constitution. Such imaginative leaps, difficult as they may be to follow, await the readers of the new book by Yale Law School Professor Jed Rubenfeld. There is more, much more, to Rubenfeld's constitutional vision, but many readers, including some scholars in the field, likely will be put off by his attempt to base his claim of judicial primacy in interpreting the Constitution not on any sources of constitutional meaning that are commonly regarded as authoritative, but rather on a blend of abstract principles derived primarily from the fact that the Constitution is written.3 In this book, as in his prior writings, Rubenfeld boldly rejects the attempts of virtually all other constitutional theorists to make sense of constitutional law. He argues IMAGE FORMULA7 that these scholars, including such luminaries as Alexander Bickel and Charles Black, have misdiagnosed the counter-majoritarian difficulty as the central question in constitutional law.4 Rubenfeld suggests that they all have failed to understand that this problem, as conventionally conceived, is not the major difficulty in constitutional theory, because its solution depends on resolving an even more basic question-the truly fundamental question of constitutional law, in his opinion-how and why the Constitution, drafted and ratified over two centuries ago, should bind the nation and continue to be regarded as legitimate long after the deaths of those who drafted and ratified it.5 In Rubenfeld's opinion, answering this fundamental question requires developing a political theory of legitimacy derived independently from the text of the Constitution or any other conventional source of constitutional authority. The text of the Constitution provides no guidance on how it should be interpreted; if one were to consult the Constitution for such guidance, one merely would be engaged in the circular exercise of interpreting the Constitution in order to determine how to interpret the Constitution. Instead, Rubenfeld suggests, one should derive a non-native theory of legitimacy from the fact that the Constitution i","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71228614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Praise of Procedure: An Economic and Behavioral Defense of Smith V. Van Gorkom and the Business Judgment Rule","authors":"Lynn A. Stout","doi":"10.2139/SSRN.290938","DOIUrl":"https://doi.org/10.2139/SSRN.290938","url":null,"abstract":"The business judgment rule is one of the most puzzling and widely-criticized doctrines in corporate law. As described in Smith v. Van Gorkom, the rule prohibits courts from second-guessing the wisdom of disinterested corporate directors' substantive decisions. Instead, courts may consider only the quality of the boards' decisionmaking process and particularly whether the board \"informed\" itself before taking action. This focus on procedure seems dysfunctional from a rational choice perspective. If directors are rational and self-interested actors, imposing liability on them for following shoddy procedures does not in itself give them incentive to exercise due care. It only gives them incentive to adopt more elaborate, and more expensive, procedures. In this essay I argue that the business judgment rule can be understood if we are willing to modify the \"homo economicus\" model of human behavior that underlies rational choice analysis to take account of the reality of socially contingent altruism. Extensive empirical evidence demonstrates that altruistic behavior is both a common and a predictable phenomenon. In particular, numerous studies of behavior in experimental social dilemma games demonstrate that altruism is easily triggered by social context (e.g., subjects' beliefs regarding others' needs, expectations, or behavior). These studies also demonstrate, however, that altruistic behavior tends to diminish as the personal sacrifice involved increases. This last finding suggests that the business judgment rule can be best understood as a mechanism for encouraging director altruism, in the form of a sense of obligation to the firm and its shareholders, by reducing the marginal personal costs associated with altruistic director behavior. In particular, I argue that the rule (1) reduces directors' marginal \"cost of comprehending\" what is going on at the firm and what the likely consequences of alternative courses of action might be, and (2) reduces directors' marginal \"cost of confronting\" the firm's managers to demand more information or to challenge a management-recommended course of action. The result is that the business judgment rule's procedural focus may provide an elegant, second-best solution to the problem of encouraging director care in situations where courts cannot assess the substantive wisdom of directors' decisions.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68427985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation","authors":"Jonathan T. Molot","doi":"10.2139/SSRN.283026","DOIUrl":"https://doi.org/10.2139/SSRN.283026","url":null,"abstract":"In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference. An earlier draft of this paper won the AALS Scholarly Paper Competition.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68364119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fairness, Efficiency, and Insider Trading: Deconstructing the Coin of the Realm in the Information Age","authors":"K. Krawiec","doi":"10.2139/SSRN.260256","DOIUrl":"https://doi.org/10.2139/SSRN.260256","url":null,"abstract":"Whether and how the federal securities laws should restrict insider trading is one of the most hotly debated topics in the securities law literature. Paradoxically, both the theoretical analysis and the legal rules concerning insider trading remain extraordinarily vague and ill-formed. What is the special character of insider trading that leads to this apparently irresolvable puzzle? In this Article, I argue that there is, in fact, nothing special about insider trading that creates this dilemma, but rather there is something special about the nature of information itself. Accordingly, this theoretical dilemma is not limited to insider trading regulation, but rather pervades all areas of intellectual property law. In this Article, I situate insider trading regulation within the larger body of intellectual property law by discussing three potential allocations of the property right in valuable inside information. First, inside information could be treated as a public resource, meaning that a person in possession of inside information could not legally exploit that advantage for personal profit. Such a regime would forbid some or all insider trading by forcing the disclosure to the marketplace of inside information prior to trading. I argue that regulators should reject this alternative because, despite it's proponents' tendency to justify the rule in terms of fairness, this proposal is unlikely to foster fairness in any meaningful way. Alternatively, the property right in valuable inside information could belong to issuers, as the producers of such information. I argue that regulators should reject this alternative because, despite its proponents? tendency to frame their arguments in terms of promoting informational efficiency, a legal regime treating inside information as the property of the issuer is unlikely to further that goal. In fact, such proposals assume an affirmative answer to a question that is fiercely debated in other areas of intellectual property law: does creating a property right in information producers incentivize additional production to the extent necessary to offset the social costs of excluding others from use of the information? Finally, the property right in valuable inside information could reside with \"outsider traders\" (traders who possess inside information, but are neither insiders nor constructive insiders of the issuer). I argue that regulators should pursue this alternative because, although there is no need to encourage issuers to create valuable inside information, the need to encourage the dissemination of such information to the marketplace has been recognized for many years. Accordingly, I propose in this Article a system of federal securities regulation that would permit trading by corporate outsiders who did not receive their information in a tip from an insider or constructive insider. Such a system, I argue, provides the hope of filling in the gaps left by the current disclose or abstain system, by encoura","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68219163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rational Ignorance at the Patent Office","authors":"Mark A. Lemley","doi":"10.2139/SSRN.261400","DOIUrl":"https://doi.org/10.2139/SSRN.261400","url":null,"abstract":"It is common to assert that the Patent and Trademark Office does a bad job of examining patents, and that it should spend more time and money weeding out bad patents. In this article, Professor Lemley challenges that conventional wisdom. Using available data regarding the cost and incidence of patent prosecution, litigation, licensing and other uses of patents, he demonstrates that strengthening the examination process is not cost effective. The core insight is that very few patents are actually litigated or licensed; most simply sit on a shelf unused, or are used only for noncontroversial purposes like financing. Because of this, society would be better off spending its resources in a more searching judicial inquiry into validity in those few cases in which it matters than paying for a more protracted examination of all patents ex ante. In economic terms, the patent office is \"rationally ignorant\" of the objective validity of the patents it issues.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.261400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The rebirth of informed consent: a cultural analysis of the Informed Consent Doctrine after Schreiber v. Physicians Insurance Co. of Wisconsin.","authors":"S K Ketler","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22413273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Facilitating Scientific Research: Intellectual Property Rights and the Norms of Science - A Response to Rai and Eisenberg","authors":"F. Kieff","doi":"10.2139/SSRN.240955","DOIUrl":"https://doi.org/10.2139/SSRN.240955","url":null,"abstract":"Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for avoiding patents and the problems Eisenberg attributes to them. This essay responds to patent critics like Rai and Eisenberg by showing how patents are essential for promoting the central norms of the basic biological research community.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2000-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Twerski & Cohen's Second Revolution: A Systems/Strategic Perspective","authors":"Lynn M. LoPucki","doi":"10.2139/SSRN.203490","DOIUrl":"https://doi.org/10.2139/SSRN.203490","url":null,"abstract":"In an article published in 1992, Professors Twerski and Cohen suggested that basic principles of the law of informed consent require medical providers to tell their patients about competing providers could perform the same procedures better or more safely. In its 1996 decision in Johnson v. Kokemoor, the Supreme Court of Wisconsin cited Twerski and Cohen's article in holding a neurosurgeon liable for not telling a patient of such a competitor. As a result, Twerski and Cohen now argue, the law of informed consent now stands on the brink of a second revolution. This comment sets forth a systems/strategic analysis of Twerski and Cohen's proposal. That is, using the delivery system for coronary bypass graft surgery as an example, it describes the current system's operation, projects how the system would operate with Twerski and Cohen's proposal in place (by exploring the strategies that patients and providers would be likely to pursue), and then evaluates the two comparatively. The comment concludes that even if the proposal were adopted immediately, the resulting change would proceed at a moderate pace. Over the long run, the proposal would tend to align the interests of providers with those of their patients and work a substantial net improvement in system operation.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2000-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.203490","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67872286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}