Copyright (c) 2009 Northwestern University School of Law All rights reserved. http://law.bepress.com/nwwps Recent documents in Northwestern Law Legal Working Paper Series en-us Tue, 03 Nov 2009 09:36:56 PST 3600 http://law.bepress.com/nwwps/plltp/art45 http://law.bepress.com/nwwps/plltp/art45 Mon, 27 Feb 2006 11:46:36 PST Electoral College reform is beginning to get some attention, with two different emphases, a move to institute a nationwide popular vote without a constitutional amendment, and a move to forbid faithless electoral votes. There is no logical incompatibility between the two, but in political and public policy terms, there are tensions between them. This paper evaluates the relative merits and importance of the two efforts and explores the tensions in simultaneous pursuit of the two. Robert Bennett Constitutional Law Politics http://law.bepress.com/nwwps/plltp/art44 http://law.bepress.com/nwwps/plltp/art44 Wed, 15 Feb 2006 13:53:56 PST "Taming the Electoral College" is a book to be published by Stanford University Press in the spring of 2006. It explores poorly understood aspects of the electoral college, including two possibilities in particular that pose the most serious danger for American democracy. These are, first, determination of the president by "faithless electors" who ignore the popular votes in their states and, second, choice of the president in the House of Representatives, which is required if no electoral college majority votes in favor of a single candidate. In any given election neither of these outcomes is likely, but the 2000 election showed that we would do well to take each seriously and act now to prevent them from occurring. Both possibilities could be dealt with through constitutional amendment, but amendment is difficult to achieve, and all the more so for electoral college reform. With this in mind the book offers non-constitutional solutions to the electoral college processes. It also offers a way to work toward popular election of the president without a constitutional amendment. The book provides a short critical history of the electoral college; and deploys political and constitutional theory as aids to understanding. Robert Bennett Constitutional Law Law and Society Legal History Public Law and Legal Theory http://law.bepress.com/nwwps/lep/art45 http://law.bepress.com/nwwps/lep/art45 Wed, 07 Dec 2005 11:38:24 PST This paper investigates the effect of changes in state prudent trust investment laws on asset allocation in noncommercial trusts. The old prudent man rule favored "safe" investmentssuch as government bonds and disfavored "speculation" in stock. The new prudent investor rule, now widely adopted, relies on modern portfolio theory, freeing the trustee to invest based on risk and return objectives reasonably suited to the trust and in light of the composition of the trust portfolio as a whole. Using state- and institution-level panel data from 1986-1997, we find that after a state's adoption of the new prudent investor rule, trust institutions held about 1.5 to 4.5 percentage points more stock at the expense of "safe" investments.Accordingly, we conclude that trustees are sensitive to changes in trust fiduciary law. Even though trust investment laws are nominally default rules, such rules matter in the presence ofagency costs and unreliable judicial enforcement of opt outs. Max M. Schanzenbach Economics Law and Economics http://law.bepress.com/nwwps/plltp/art43 http://law.bepress.com/nwwps/plltp/art43 Mon, 07 Nov 2005 15:06:09 PST By abolishing the Rule Against Perpetuities, 21 states have validated perpetual trusts. The prevailing view among scholars is that the 1986 generation skipping transfer (GST) tax prompted the movement to abolish the Rule by conferring a salient tax advantage on long-term trusts. However, an alternate view holds that demand for perpetual trusts stems from donors' preference for control independent of tax considerations. Proponents of both views have adduced supporting anecdotal evidence. Using state-level panel data on trust assets prior to the adoption of the GST tax, we examine whether a state's abolition of the Rule gave the state an advantage in the jurisdictional competition for trust funds. We find that, prior to the GST tax, a state's abolition of the Rule did not increase the state's trust business. By contrast, in a prior empirical study we found that, between the enactment of the GST tax and 2003, states that abolished the Rule experienced a substantial increase in trust business. Accordingly, we conclude that the enactment of the GST tax sparked the modern perpetual trust phenomenon. Understanding the impetus for the rise of the perpetual trust throws light on the debate over recent proposals to liberalize the law of trust termination and modification and to amend the GST tax. Our empirical assessment of competing explanations for the rise of the perpetual trust also contributes to the literature on the bequest motive. Max M. Schanzenbach Taxation-State and Local Trusts http://law.bepress.com/nwwps/plltp/art42 http://law.bepress.com/nwwps/plltp/art42 Wed, 02 Nov 2005 09:49:09 PST Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. The article explores the relationship between copyright scope and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. This analysis of copyright scope establishes that (1) the efficiency of private ordering is the key determinant of the ideal level of copyright scope; (2) the complexity of the welfare-scope relationship is such that we are unlikely to be able to ascertain a generalizable optimal level of copyright scope - the relationship will clearly be subject to substantial variation, both within and between industries; (3) doctrinal recommendations which aim to optimize copyright scope in the abstract but do not account for the effect of a doctrinal change on transaction costs or uncertainty are necessarily incomplete. This article bridges the gap between the traditional law and economics of copyright and specific doctrinal analysis, applying the above conclusions as metrics for assessing doctrinal proposals. The usefulness of applying these metrics in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. Matthew J. Sag Intellectual Property Law http://law.bepress.com/nwwps/plltp/art41 http://law.bepress.com/nwwps/plltp/art41 Tue, 28 Jun 2005 09:17:17 PDT Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others' efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe the concept of legal doctrine and propound various theories of how legal doctrine may matter in judicial decision making and how those theories may be empirically tested. Emerson Tiller Judges Jurisprudence Law and Society Politics Public Law and Legal Theory http://law.bepress.com/nwwps/plltp/art40 http://law.bepress.com/nwwps/plltp/art40 Thu, 02 Jun 2005 14:36:24 PDT This essay traces the relationship between activists and academics involved in the campaign for "women's rights as human rights" as a case study of the relationship between different classes of what I call "knowledge professionals" self-consciously acting in a transnational domain. The puzzle that animates this essay is the following: how was it that at the very moment at which a critique of "rights" and a reimagination of rights as "rights talk" proved to be such fertile ground for academic scholarship did the same "rights" prove to be an equally fertile ground for activist networking and lobbying activities? The paper answers this question with respect to the work of self-reflexivity in creating a "virtual sociality of rights." Annelise Riles http://law.bepress.com/nwwps/plltp/art39 http://law.bepress.com/nwwps/plltp/art39 Thu, 02 Jun 2005 14:36:22 PDT This article explores the productive uses of amateurism in comparative law through a close reading of the life and work of John Henry Wigmore, the founder of the American tradition of comparative law who first came to the subject as a young missionary for the Langdellian style of American legal education in turn-of-the-century Japan. Drawing on anthropological and linguistic theory, the article explains amateurism as a post-Realist epithet for formalism. It seeks to counter the received view of the discipline as a pure product of American and European critiques of legal classicism by demonstrating how Wigmore's turn to the performative dimensions of legal formalism, at a moment when formalism found itself under Realist attack, provided a sustaining vision of the discipline. The power and creativity of formalist performance, as well as its limitations and even dangers, as deployed by Wigmore, raise questions relevant beyond comparative law about the aesthetic dimensions of American formalism. Annelise Riles http://law.bepress.com/nwwps/plltp/art38 http://law.bepress.com/nwwps/plltp/art38 Thu, 02 Jun 2005 14:36:20 PDT This article contriubtes a new perspective to existing scholarship on internationalization of the legal profession by focusing on the increasing presence of foreign lawyers in U.S. law schools and law firms. It analyzes the interaction between foreign-educated lawyers and the legal profession in the U.S. based upon two sources of information: first, a series of interviews with foreign-educated lawyers and U.S. law firm hiring partners regarding experiences in law school and in firms, and second, a database comprised of biographical information for more than 300 foreign-educated lawyers who were working in New York during 1999 and 2000. The various roles occupied by foreign lawyers in U.S. law schools and law firms are considered, including serving as substitutes for U.S. J.D. graduates and as connections to foreign legal markets. Despite their rhetoric of internationalization, U.S. law firms remain essentially domestic institutions; they have rarely integrated foreign-educated lawyers into their structures in the U.S. However, in order to meet the growing competition from accounting and consulting firms as well as from foreign law firms, U.S. lawyers may need to reconsider their reliance upon this domestic mindset. Carole Silver http://law.bepress.com/nwwps/plltp/art37 http://law.bepress.com/nwwps/plltp/art37 Thu, 02 Jun 2005 14:36:19 PDT In this study, Professor Lindgren examined data on the 108 confirmed nominees to the U.S. Circuit Courts of Appeal from the administrations of George H.W. Bush and William J. Clinton. He shows - for the first time - evidence of differential treatment of nominees by the American Bar Association's rating committee. Yet this is not a simple story of apparent ABA bias toward Clinton nominees. Among confirmed nominees with the most important credential - prior judicial experience - Bush nominees fare roughly as well and sometimes even better than Clinton nominees. The problem arises for those without judicial experience. Here the apparent preference for Clinton appointees is strikingly large. Without controlling for any credentials, Clinton confirmed nominees have 9.1 times as high odds of getting a unanimous well qualified rating as do Bush confirmed nominees. Controlling for credentials, Clinton nominees have 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees. For those without prior judicial experience, just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together. The differences in how the ABA treats Bush and Clinton nominees reaches even to the committee's internal decision making. The ABA committee split its vote 33% of the time while evaluating Bush appointees, but only 17% of the time when evaluating Clinton appointees. This difference was concentrated among those who lacked prior judicial experience, where 50% of Bush appointees had split ratings, compared to only 10% of Clinton appointees with split ratings. James T. Lindgren