Faculty Books & Edited Works

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  The Rule of Law and the Measure of Property

  Jeremy Waldron

  When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the 'World Bank model' of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives.

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  Dignity, Rank, and Rights

  Jeremy Waldron, Wai Chee Dimock, Don Herzog, Michael Rosen, and Meir Dan-Cohen

  Writers on human dignity roughly divide between those who stress the social origins of this concept and its role in marking rank and hierarchy, and those who follow Kant in grounding dignity in an abstract and idealized philosophical conception of human beings. In these lectures, Jeremy Waldron contrives to combine attractive features of both strands. In the first lecture, Waldron presents a conception of dignity that preserves its ancient association with rank and station, thus allowing him to tap rich historical resources while avoiding what many perceive as the excessive abstraction and dubious metaphysics of the Kantian strand. At the same time he argues for a conception of human dignity that amounts to a generalization of high status across all human beings, and so attains the appealing universality of the Kantian position. The second lecture focuses particularly on the importance of dignity - understood in this way - as a status defining persons' relation to law: their presentation as persons capable of self-applying the law, capable of presenting and arguing a point of view, and capable of responding to law's demands without brute coercion. Together the two lectures illuminate the relation between dignity conceived as the ground of rights and dignity conceived as the content of rights; they also illuminate important ideas about dignity as noble bearing and dignity as the subject of a right against degrading treatment; and they help us understand the sense in which dignity is better conceived as a status than as a kind of value.

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  Federal Tax Practice and Procedure: Cases, Materials, and Problems

  Camilla E. Watson and Brookes D. Billman

  A Federal Tax Practice and Procedure course should be a basic component of any tax curriculum. The issues it presents pertain mostly to compliance (e.g., filing returns, paying the tax, collections) and the problems arising from compliance (e.g., overpayments, tax controversies and litigation) or noncompliance (e.g., penalties and criminal prosecution). Federal tax practice and procedure is divided into two general components: civil and criminal. This casebook introduces students to both components and is designed to be used in a variety of two or three credit hour courses or seminars at both the J.D. and LL.M. levels. These include courses in civil tax practice and procedure, ethics of tax practice, tax litigation, and tax crimes. The casebook contains questions and problems throughout to test students’ comprehension of the material and to provoke further thought about the issues presented. While a limited background in substantive federal tax is useful, it is not required. Therefore, students may take these courses without first taking Federal Income Taxation. It is recommended (although not required) that students take Criminal Law or Criminal Procedure prior to taking Tax Crimes. This second edition is updated through September 2011. Between the first and second editions, there have been numerous cases and tax legislation that made significant changes to the practice and procedure area. We took the liberty in this new edition to change the structure of the first chapter to make it shorter and more of a basic introductory chapter. Some of the material in the original version of Chapter 1 relating to the United States Tax Court has been moved to Chapter 8 in which the subject of litigation in that court is fully considered. Otherwise, the organization of this edition follows the basic organization of the first edition. In some chapters, however, new material has been added and some old material may have been deleted. As on example, Chapter 7 now contains a new section focusing upon Collection Due Process. This reflects the large volume of cases, primarily in the United States Tax Court, in which taxpayers have exercised their rights to have their collection issues reviewed first by the Internal Revenue Service and then by a court of law. We have edited most of the cases and other materials in an attempt to keep the book at a manageable length. Deleted material has been marked with asterisks (* * *), although footnotes, citations, and dissenting opinions may have been deleted without indication. Footnotes retain their numbering from the original sources.

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  The Public International Law Regime Governing International Investment

  José E. Alvarez

  This monograph considers the ramifications of the legal regime that governs transborder capital flows. This regime consists principally of a network of some 3,000 investment treaties, as well as a growing body of arbitral decisions. Professor Alvarez contends that the contemporary international investment regime should no longer be described as a species of territorial “empire” imposed by rich capital exporters on capital importers. He examines the evolution of investment treaties and investor-State jurisprudence constante and identifies the connections between these and general trends within public international law, including the increased resort to treaties (“treatification”), growing risks to the law’s consistency (“fragmentation”), and the proliferation of forms of international adjudication (“judicialization”). Professor Alvarez also considers whether the regime’s efforts to “balance” the needs of non-State investors and sovereigns ought to be characterized as “global administrative law," as a form of constitutionalization,” or as an increasingly human-rights-centred enterprise.

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  The Evolving International Investment Regime: Expectations, Realities, Options

  José E. Alvarez, Karl P. Sauvant, Kamil Gerard Ahmed, and Gabriela P. Vizcaino

  With the growth of the global economy over the past two decades, foreign direct investment (FDI) laws, at both the national and international levels, have undergone rapid development in order to strengthen the protection standards for foreign investors. In terms of international investment law, a network of international investment agreements has arisen as a way to address FDI growth. FDI backlash, reflective of more restrictive regulation, has also emerged. This book analyzes the existing challenges to the international investment regime, and addresses these challenges going forward. It also examines the dynamics of the international regime, as well as a broader view of the changing global economic reality both in the United States and in other countries. The content for the book is a compendium of chapters by leading thinkers, originating from the International Investment Conference “What's New in International Investment Law and Policy?”.

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  Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

  Anthony S. Barkow and Rachel E. Barkow

  Who should police corporate misconduct and how should it be policed? In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren’t subject to the same checks and balances that civil regulatory agencies are. Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the leading lights in the field, including criminal law professors who specialize in the field of corporate criminal liability and criminal law, a top economist at the SEC who studies corporate wrongdoing, and a leading expert on the use of monitors in criminal law. The essays in this volume move beyond criticisms of the practice to closely examine exactly how regulation by prosecutors works. Broadly, the contributors consider who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution. Contributors: Cindy R. Alexander, Jennifer Arlen, Anthony S. Barkow, Rachel E. Barkow, Sara Sun Beale, Samuel W. Buell, Mark A. Cohen, Mariano-Florentino Cuellar, Richard A. Epstein, Brandon L. Garrett, Lisa Kern Griffin, and Vikramaditya Khanna

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  Trademarks, Unfair Competition, and Business Torts

  Barton C. Beebe, Thomas F. Cotter, Mark A. Lemley, Peter S. Menell, and Robert P. Merges

  This casebook is the culmination of a substantial effort on the part of its coauthors to create a text that brings together a variety of related bodies of law, many of which until now were only rarely covered in much depth (it at all) in the typical law school curriculum. Our motivation in writing the book therefore was threefold: (1) to expose students to rich new theoretical, analytical, and empirical insights into the law of trademarks, unfair competition, and business torts; (2) to integrate the important (and often overlooked) bodies of state unfair competition law; and (3) to emphasized the growing challenges posed by the Internet and digital technology. Law professors can use this casebook to teach for a variety of two- or three-credit courses within the law school curriculum, including courses primarily devoted to trademark or advertising law; to unfair competition and business torts; or to any combination of these subjects. The casebook makes ample use of problems, many of them derived from real cases. In some instances, to highlight how related legal doctrines can sometimes impact the same set of facts, students are asked to reconsider a problem found in an earlier chapter in light of the material discussed in a later chapter. The following is a synopsis of the casebook contents: Chapter 1. Introduction. In this chapter, we briefly outline the different bodies of law discussed in later chapters. We also present reading and problems designed to introduce students to the various policy rationales for, and critiques of, each of these bodies of law. In particular, we hope that students come away from this chapter with a basic understanding (to be explored at greater depth throughout the course) of the difficulty of distinguishing “fair” from “unfair” competition, and of the tension that sometimes arise between some applications of these bodies of law and the First Amendment. Chapters 2-8. Trademarks. These chapters expand upon and update the coverage of trademark law found in Chapter 5 of Robert P. Merges, Peter S. Menell and Mark A. Lemley, Intellectual Property in the New Technological Age (5th ed. 2009). Chapter 2 briefly surveys the history of trademarks and trademark law and the theoretical bases for trademark protection. Chapters 3 and 4 consider what can qualify for trademark protection and how trademark rights are established. Chapter 4 in particular includes enhanced coverage of genericness, trade dress, and functionality doctrine and of the registration process of the U.S. Patent and Trademark Office. Chapter 5 addresses trademark infringement and provides thorough coverage of the multifactor text for the likelihood of consumer confusion, courts’ application of the new Trademark Dilution Revision Act, and secondary liability in trademark law. Chapter 6 reviews defenses to trademark infringement, such as abandonment and fair use. Chapter 7 briefly considers international aspects of trademark protection, while Chapter 8 covers remedies for trademark infringement. Chapter 9. False Advertising. This chapter provide thorough coverage of the law of false advertising and related doctrines under various common-law and statutory systems. It beings with an overview of the economics of advertising, and then contrasts the common law’s skeptical take on false advertising suits initiated by competitors to the Lanham Act’s (somewhat) more permissive approach. The chapter also includes substantial coverage of a parallel body of false advertising law developed and enforced by the Federal Trade Commission (FTC) and a brief discussion of analogous state laws (the so-called Baby FTC Acts). The chapter continues with a discussion of the related tort of commercial disparagement under the common law and the Lanham Act, and with materials on litigants’ attempts to use the Lanham Act to create a federal right of attribution. The chapter conclude with an extended discussion of possible First Amendment constraints on the law of false advertising and disparagement; a brief survey of international issues; and remedies for false advertising. Chapter 10. Right of Publicity. This chapter presents detailed coverage of state law rights of publicity and related claims for false endorsement. The chapter covers the historical development of the right and differences among the various state law approaches. The chapter also includes extensive discussion of the tension between the right of publicity and the First Amendment, and various courts’ and commentators’ efforts to reconcile the two. Chapter 11. Trade Secrets. Like chapters 2-8, this chapter expands upon coverage of a topic presented in Intellectual Property in the New Technological Age. The chapter provides a comprehensive overview of the law of trade secrets, including both its civil and criminal law aspects, as well as the related body of law on employee covenants not to compete. The chapter includes extensive problems designed to flesh out the meaning of the often ambiguous language of the relevant statutes, and like the two preceding chapters incorporates extensive discussion of related First Amendment issues. Chapter 12. Legal Protection for Facts, Uncopyrightable Factual Compilations, and Ideas. This chapter covers a variety of still-evolving bodies of law, including the once-dormant “hot news” doctrine that now appears, for better or worse, to be making a modest comeback in the Internet age; the enforceability of shrinkwrap and clickwrap agreements; and a top of interest to aspiring screenwriters everywhere, the enforceability of contracts allegedly relating to the confidential submission of ideas. Chapter 13. Cybertrespass. This chapter explores how courts in the digital age have looked o the antique law of personal property to fashion remedies for conduct such as unauthorized access to websites and transfers of domain names. Are these common-law analogies apt when applied to a very different setting from that in which they arose? Chapter 14. Tortious Interference and RICO. This chapter introduces students to two commonly pled business torts (which sometimes arise in connection with other bodies of law discussed elsewhere in the book, as well as independently of those bodies of law). The chapter begins with a discussion of the related torts of tortious interference with prospective business advantage. It concludes with a brief discussion of common-law fraud and of modern-day civil claims arising under the federal RICO statute. Chapter 15. Preemption. Preemption issues pervade many of the topics covered elsewhere in the book. Professors who wish to do so could teach portions of chapter 15 in connection with these other chapters, or they may leave the topic of preemption to separate class periods towards the end of the semester as a way of tying the various materials together. The chapter excerpts the leading U.S. Supreme Court cases on federal preemption of state intellectual property and unfair competition claims, as well as recent appellate court decisions addressing the preemption of hot news, shrinkwrap, and right of publicity claims. The chapter conclude by presenting contrasting views on the preemption of state law claims by other state law, namely the Uniform Trade Secrets Act.

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  Cases and Materials on European Union Law

  George A. Bermann, Roger J. Goebel, William J. Davey, and Eleanor M. Fox

  The study of European Union (or EU) law has steadily gained importance in recent years. The EU today consists of twenty-seven Member States with a complex institutional and constitutional structure. This casebook is intended to provide a basic understanding of the European Union and its predecessor, the European Community, including their structures, goals, fields of action, achievements and aspirations, providing a foundation for further research, analysis and legal writing. There are many valid reasons to study European Union law. We present here three of the most important ones. The most pragmatic of them is that the EU has become the largest trading partner of the US, represents a major site of investment for US firms and is the principal site of overseas offices of American law firms. Indeed, its total Gross Domestic Product has recently surpassed that of the US. US law firms and international house counsel cannot afford to possess only a limited knowledge of Union structure, law-making processes and substantive law. European Union competition and trade law have long been staples of international practice. Today the EU’s harmonization of health, safety and technical standards, company, banking and securities law, environmental and consumer protection measures, and legislation in the field of employment law (to name just a sampling of sectors) represent matters of practical concern to American enterprises and their lawyers. The Economic and Monetary Union, with a single currency and a single monetary policy for a majority of the EU States, is also of evident importance to the international business and legal world. Second, European Union law is a rewarding field for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. A rich source of comparative study is also to be found in the EU programs for harmonization of laws. In some fields, as in environmental and consumer rights law, the EU has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, employment law, and anti-discrimination law, the EU has taken quite a different path from the US. Constitutional comparisons and contrasts between the US and EU enrich legal analysis on both sides of the Atlantic. Third, European Union law provides a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes evolving constitutional framework, its institutions, substantive legislations and judicial law, and the constant interplay of policy and politics in an evolving federal-type system, one comprised of twenty-seven nations having many common features, but also quite diverse legal and political systems, demographics and interests. Students who take a basic EU law course for any or all of these reasons will find the casebook of great value. The book covers virtually all major fields of European Union law (except for certain technical fields, such as agriculture, transport, energy and public procurement). The notes and questions are intended to facilitate reflection on how and why the EU institutions, and especially the Court of Justice and Court of First Instance (now renamed the General Court) have reached their legal and policy conclusions. The text and notes make frequent comparisons with US law. The authors hope that students will thereby achieve not only a solid comprehension of European Union law, but also one permitting critical evaluation. The casebook was written primarily for use in US law schools. It is suitable as well for law faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials, notably the Treaty provisions, legislation and court judgments, inviting students to examine these materials critically through focused questions. Accordingly, Court judgments and EU legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgements and legislation through questions will assist in a more reflective comprehension of EU rules and judicial doctrines. The entry into force on Dec. 1, 2009 of the Lisbon Treaty on European Union (TEU) and its accessory Treaty on the Functioning of the European Union (TFEU), which replaces the prior European Community Treaty (ECT), complicates to some extent current study of EU law. The Lisbon TEU’s provisions include many innovations as compared to the prior Maastricht Treaty on European Union, in effect from Nov. 1, 1993. We have tried always to make clear to which TEU we are referring when discussing provisions in the casebook text. Moreover, although many TFEU articles only reiterate provisions of the ECT, some have significantly changed and all have been renumbered. We have customarily indicated the corresponding provisions of both the ECT and TFEU in the casebook text and the excerpted judgments. Over time the Lisbon TEU and TFEU provisions will become familiar, but currently some confusion is inevitable. The Selected Documents, which accompanies the casebook, should prove quite helpful in this regard. It contains the Lisbon TEU, TFEU and the ECT (as most recently amended by the Treaty of Nice, effective Feb. 1, 2003), as well as a conversion table of article numbers between the TFEU and ECT. The Selected Documents also include the Charter of Fundamental Rights of the European Union, given Treaty legal force by the TEU, certain key Protocols, and a considerable number of secondary legislative measures that are important to the understanding of relevant casebook text. The accessibility of these documents should be helpful in research and writing. Clearly there is more material in this casebook than can be responsibly covered in a single semester course. There is a range of possibilities. Teachers who wish especially to emphasize constitutional and institutional issues will find that Parts I and II of the book provide a comprehensive picture of the legal and institutional framework of the European Union, furnished material for at least a full half-semester of teaching, thereby allowing the constitutional and institutional themes to become the course’s leitmotif. They may then assign substantive law chapters that best match their own and their students’ interests. We recommend that nay such substantive law selection include a very healthy dose of the material in Part III on the internal Market, one or two basic chapters on competition policy (from Part IV), and one or two basic chapters on external relations and trade (from Part V) or economic and monetary union and free movement of capital (from Part VI). Other teachers may wish to concentrate in a course or seminar on certain substantive aspects of Union law. Thus a course might concentrate on the common market, or internal market, in Part III, perhaps with the addition of Part VI on free movement of capital and the Economic and Monetary Union, and some chapters from Part VII. Another likely course is one centered on competition law, the topic of Part IV, perhaps joined with coverage of external relations and trade law, the subject of Part V. Any of the assorted substantive law topics in Part VII—environmental protection, consumer rights, social policy, equal employment rights and jurisdiction and judgments—might appropriately be covered either in a basic course or advanced seminar. We hope that the casebook will prove easy to use while also highly instructive, and that it will stimulate further study and scholarship in the ever-widening fields of European Union law.

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  Administrative Law and Regulatory Policy: Problems, Text, and Cases

  Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Adrian Vermeule, and Michael E. Herz

  Outstanding authorship, rich materials, and systematic coverage are the hallmarks of Administrative Law and Regulatory Policy, now in its seventh edition. Administrative procedure is examined in light of substantive policy debates in areas such as health, safety, environmental protection, and economic regulation. Questions, notes, and problems support thoughtful reading and analysis of Supreme Court decisions, agency actions, and matters of contemporary debate. A careful and rigorous revision, the Seventh Edition updates content throughout, gives consistent attention to detail, and tightens the presentation. Combining attention to the most recent developments in the field with the rigor and breadth that have always characterized this classic book, the Seventh Edition offers a thorough and timely overview of administrative law. Timeless features of this landmark casebook: logical organization that reveals the interaction of doctrine and procedure, as well as bureaucratic and political factors; Notes and Problems that methodically explore all aspects of regulatory law and policy; historical background material that shows how the New Deal changed American government; in-depth consideration of the justifications for and tools of regulation. New in the Seventh Edition: completely revised materials on presidential appointment and removal; coverage of e-rulemaking, the Obama Administration's transparency and openness initiatives, and other uses of new technologies; material on the Information Quality Act, midnight regulations, and guidance documents; a brief new section on global administrative law; key Supreme Court decisions: Free Enterprise Fund v. PCAOB, Gonzales v. Oregon, Massachusetts v. EPA, FCC v. Fox Television Stations, Inc., Woodford v. Ngo; streamlined Notes and Questions; expanded statutory appendix.

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  EU Law: Text, Cases, and Materials

  Paul Craig and Gráinne de Búrca

  The fifth edition of Craig and de Burca EU Law: Text, Cases, and Materials provides clear and insightful analysis of all aspects of European Law in the post Lisbon era. Building on its unrivalled reputation as the definitive EU Text, Cases, and Materials book, this edition looks in detail atthe way in which the Treaty of Lisbon has radically changed both the institutional and substantive law of the European Union.Paul Craig and Grainne de Burca are noted scholars on European Law who have a wealth of experience of both teaching and writing in this subject area. Working closely as an author team for nearly twenty years, they succeed in bringing together a unique mix of illuminating commentary and well-chosenextracts from a wide range of primary and secondary materials.Many of the chapters have been substantially or wholly rewritten, including those on key areas such as Institutions, Legal Instruments and the Hierarchy of Norms, Competences, and Legislation and Decision-Making. All of the chapters have been revised to take account of developments in case law andlegislation, and to make students aware of cutting edge academic debates. There is in addition a new chapter on EU Criminal Law. The new edition therefore gives readers a clear understanding of the changes made by the Lisbon Treaty and the way in which the legal and political landscape hasdeveloped since it came into force. A revised table of contents facilitates navigation through the book.The Online Resource Centre will contain information about the book and sample chapters

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  The Evolution of EU Law

  Paul Craig and Gráinne de Búrca

  The European Union has undergone major changes in the last decade, including Treaty reform, and a significant expansion of activity in foreign and security policy, and justice and home affairs. In the first edition of this influential textbook, a team of leading lawyers and political scientists reflected upon the important developments in their chosen area over the time since the EC was formed. This new edition continues this analysis ten years on. Taking into account the social and political background, and without losing sight of the changes that came before, in each chapter the contributors analyze the principle themes and assess the legal and political forces that have shaped its development. Each author addresses a specific topic, event, or theme, from the European Court of Justice to Treaty reform; the enlargement of the EU to administrative law; the effect of EU law on culture to climate change. Together the chapters tell the story of the rapid development of EU law—its past, present, and future.

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  The Logic of Subchapter K: A Conceptual Guide to the Taxation of Partnerships

  Laura E. Cunningham and Noël B. Cunningham

  This product is designed to guide students through the conceptual framework of subchapter K. The material avoids neither the hard questions nor the conceptual difficulties, leaving students with a firm understanding of partnership taxation. Each chapter begins with a basic explanation of the relevant provisions and the roles that they play in the overall structure of subchapter K. It includes an increasingly detailed discussion of the specific rules, including multiple illustrative examples. Each chapter builds on the earlier chapters, leading the student through subchapter K. It is appropriate for J.D. or graduate-level law school courses on partnership taxation.

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  Enacting Pleasure: Artists and Scholars Respond to Carol Gilligan's New Map of Love

  Peggy C. Davis and Lizzy Cooper Davis

  In her book In a Different Voice (1982), psychologist Carol Gilligan proffered the controversial idea that a psychology of male development could not suffice as a psychology of all human development, both male and female. Since the publication of that revolutionary book, and her later work The Birth of Pleasure (2002), which argued that the pleasure of love is a common human denominator often repressed in a hierarchical culture, Gilligan has been recognized by some scholars as a pioneer of feminist thought and vilified by others as an essentialist and a proponent of gender difference. In Enacting Pleasure, a distinguished group of artists and scholars explores the personal and political implications of Gilligan’s account of pleasure and the human psyche. The contributors to this volume come to Gilligan’s work with a wide-range of perspectives—from those who view her ideas as Eurocentric, heterocentric, Freudian or anti-Freudian to others who see it among the most advanced theories in neuroscience and human biology as well as a blueprint for progressive politics. As a whole, this diverse collection stands as a meditation on the role that love plays in psychology, art and politics.

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  The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research

  Rochelle C. Dreyfuss and Katherine J. Strandburg

  This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships. The editors introduce the long tradition of trade secrecy protection and its emerging importance as a focus of scholarly inquiry. The book then presents theoretical, doctrinal, and comparative considerations of the foundations of trade secrecy, before moving on to study the impact of trade secrecy regimes on innovation and on other social values. Coverage includes topics such as sharing norms, expressive interests, culture, politics, competition, health, and the environment. This important Handbook offers the first modern exploration of trade secrecy law and will strongly appeal to intellectual property academics, and to students and lawyers practicing in the intellectual property area. Professors in competition law, constitutional law, and environmental law will also find much to interest them in this book, as will innovation theorists.

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  Design for Liberty: Private Property, Public Administration, and the Rule of Law

  Richard A. Epstein

  Following a vast expansion in the twentieth century, government is beginning to creak at the joints under its enormous weight. The signs are clear: a bloated civil service, low approval ratings for Congress and the President, increasing federal-state conflict, rampant distrust of politicians and government officials, record state deficits, and major unrest among public employees. In this compact, clearly written book, the noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state allows too much discretion on the part of regulators, which results in arbitrary, unfair decisions, rent-seeking, and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth. This structure also makes possible a restrained public administration to implement limited objectives. Government continues to play a key role as night-watchman, but with the added flexibility in revenues and expenditures to attend to national defense and infrastructure formation. Although no legal system can eliminate the need for discretion in the management of both private and public affairs, predictable laws can cabin the zone of discretion and permit arbitrary decisions to be challenged. Joining a set of strong property rights with sound but limited public administration could strengthen the rule of law, with its virtues of neutrality, generality, clarity, consistency, and forward-lookingness, and reverse the contempt and cynicism that have overcome us.

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  Why Progressive Institutions Are Unsustainable

  Richard A. Epstein

  The painful performance of the American economy in the past decade is not a function of bad luck. It is the product of flawed institutional design. Right now we are reaping the harvest of efforts to reinvigorate the progressive programs of the New Deal that stress high progressive taxes, large transfer payments, strong labor laws, and major barriers to free trade. This combination of public finance and market regulation has proved a potent force for disaster. High marginal tax rates expose the political system to strong factional strife that stifles initiative, adds uncertainty and reduces overall revenues. To these multiple ailments, Epstein argues that the best recipe is a return to the flat tax of the classical liberal tradition. The government has committed itself to substituting state mandates for voluntary arrangements in labor and real estate markets, disabling both by retarding job formation and roiling real estate markets. To these multiple ailments, Epstein argues that the best recipe is a reinvigoration of free markets that do not upset voluntary arrangements on the supposed grounds that they are unfair, one-sided or exploitive. Just change these two levers, and we can find an effective classical liberal antidote to excesses of the modern progressive age.

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  Conflict of Laws in International Arbitration

  Franco Ferrari and Stefan Kröll

  Irrespective of the increasing harmonization of law at the transnational level, every arbitration raises a number of conflict of laws problems relating to procedural questions as well as to issues concerning the merits of the case. Unlike a state court judge, the arbitrator has no “lex fori” in the proper sense providing the relevant conflict rules to determine the applicable law. This raises the question of what conflict of laws rules to apply and, consequently, of the extent of the freedom the arbitrator enjoys in dealing with this and related issues. The best example of the importance of conflict of laws questions in arbitration is the Vivendi-Elektrim saga where the outcome of the various proceedings depended on the question of characterization. This very beneficial book is dealing with: the arbitration agreement, the jurisdiction of the arbitral tribunal, the law applicable to the merits and the arbitration procedure.

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  Economic Development: The Critical Role of Competition Law and Policy

  Eleanor M. Fox and Abel M. Mateus

  Competition law and policy is a topical and relevant field of research which has been analysed from both global and national perspectives. This authoritative research review is the first of its kind to bring together seminal works from leading scholars in economic development and in competition law. It encompasses the most up-to-date and rigorous methodologies of empirical and technical analysis, with a specific focus on the problem of developing countries. This research review discusses the theoretical and political foundations of competition policies versus industrial policies and the raging debate between market-based versus interventionist industrialization policies as well as including the most relevant literature on competition law and enforcement in developing countries, including a cross section and case study perspective.

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  Open Book: Succeeding on Exams from the First Day of Law School

  Barry Friedman and John C.P. Goldberg

  Wolters Kluwer Law and Business is known for its essential guides for law school success. Now Open Book : Succeeding on Exams from the First Day of Law School offers today's law students more than simple exam preparation. The authors, both award-winning teachers with a wealth of classroom experience, reveal what professors really look for in exam answers. By linking exam-taking to the actual practice of law, they explain what it means to 'think like a lawyer' in an exam setting, and how to get the most out of classes. Open Book also showcases a distinctive central pedagogy, 'the pinball method of exam-taking,' and provides detailed examples and a wealth of concrete exam-taking techniques. Initial reviewers--including professors teaching core 1L classes, writing instructors and law school administrators--have been unanimous and enthusiastic in their praise. Numerous student reviewers have likewise remarked that it changed their study habits and their entire outlook on law school. With straightforward prose, memorable, and often humorous illustrations, and a unique insider's perspective, Open Book : Succeeding on Exams from the First Day of Law School opens a clear path to law school success

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  America's Death Penalty: Between Past and Present

  David W. Garland, Michael Meranze, and Randall McGowen

  Over the past three decades, the United States has embraced the death penalty with tenacious enthusiasm. While most of those countries whose legal systems and cultures are normally compared to the United States have abolished capital punishment, the United States continues to employ this ultimate tool of punishment. The death penalty has achieved an unparalleled prominence in our public life and left an indelible imprint on our politics and culture. It has also provoked intense scholarly debate, much of it devoted to explaining the roots of American exceptionalism. America’s Death Penalty takes a different approach to the issue by examining the historical and theoretical assumptions that have underpinned the discussion of capital punishment in the United States today. At various times the death penalty has been portrayed as an anachronism, an inheritance, or an innovation, with little reflection on the consequences that flow from the choice of words. This volume represents an effort to restore the sense of capital punishment as a question caught up in history. Edited by leading scholars of crime and justice, these original essays pursue different strategies for unsettling the usual terms of the debate. In particular, the authors use comparative and historical investigations of both Europe and America in order to cast fresh light on familiar questions about the meaning of capital punishment. This volume is essential reading for understanding the death penalty in America.

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  Principles of Products Liability

  Mark A. Geistfeld

  The varied doctrines, disputes, competing conceptions of liability and responsibility, and leading cases in this area are all discussed in this book. Unlike other books in this subject area, this title fully develops the underlying concepts and then repeatedly shows how the important doctrines can be understood in terms of a few basic principles. The book also provides insights into the processes of the common law, while locating products liability within tort law more generally. The book will be of interest both for the specialized study of products liability and the more general study of tort law.

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers, Roy D. Simon, and Andrew M. Perlman

  Prior edition of Regulation of Lawyers: Statutes and Regulations (Concise ed).

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers, Roy D. Simon, and Andrew M. Perlman

  Prior edition of Regulation of Lawyers: Statutes and Regulations.

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  Local Redistribution and Local Democracy: Interest Groups and the Courts

  Clayton P. Gillette

  The traditional theory of urban finance argues against local redistribution of wealth on the assumption that such action is likely to chase away the relatively wealthy, leaving only the impoverished behind. Nevertheless, Clayton P. Gillette observes, local governments engage in substantial redistribution, both to the wealthy and to the poor. In this thoughtful book, Gillette examines whether recent campaigns to enact "living wage" ordinances and other local redistributive programs represent gaps in the traditional theory or political opportunism. He then investigates the role of the courts in distinguishing between these explanations. The author argues that courts have greater capacity to review local programs than is typically assumed. He concludes that when a single interest group dominates the political process, judicial intervention to determine a program's legal validity may be appropriate. But if the political contest involves competing groups, courts should defer to local political judgments.

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  Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions

  Ryan Goodman and Thomas Pegram

  National Human Rights Institutions (NHRIs) – human rights commissions and ombudsmen – have gained recognition as a possible missing link in the transmission and implementation of international human rights norms at the domestic level. They are also increasingly accepted as important participants in global and regional forums where international norms are produced. By collecting innovative work from experts spanning international law, political science, sociology and human rights practice, this book critically examines the significance of this relatively new class of organizations. It focuses, in particular, on the prospects of these institutions to effectuate state compliance and social change. Consideration is given to the role of NHRIs in delegitimizing – though sometimes legitimizing – governments' poor human rights records and in mobilizing – though sometimes demobilizing – civil society actors. The volume underscores the broader implications of such cross-cutting research for scholarship and practice in the fields of human rights and global affairs in general.