Copyright (c) 2009 Tel Aviv University Law School All rights reserved. http://law.bepress.com/taulwps Recent documents in Tel Aviv University Legal Working Paper Series en-us Sat, 25 Jul 2009 13:13:03 PDT 3600 http://law.bepress.com/taulwps/fp/art111 http://law.bepress.com/taulwps/fp/art111 Thu, 23 Jul 2009 22:10:09 PDT The article explores the potential for redistribution through protective legal rules. It offers a new framework to assess redistribution through legal rules in the context of employment law and specifically the protection granted to workers with familial care responsibilities in the Family and Medical Leave Act of 1993 (FMLA), and the application of protective employment laws to the employment of in-home care workers. The article offers two main interventions in existing scholarship. First, the article develops a new framework to assess the distributive effects of protective legal rules, and specifically of family leave mandates. The framework is novel in that it captures more than the redistribution of material resources, as most distribution-based analyses currently do. Second, while most scholarship on the interaction of employment law with familial care focuses on standard employment settings, the article adds an analysis of the effects of employment law on the secondary market of in-home care. The article shows that the combined study of the way employment law affects both care workers and their employers is crucial to a holistic understanding of the formative and distributive effects of employment law on markets of care. Hila Shamir Employment Practice General Law Law and Society Sexuality and the Law Social Welfare Women http://law.bepress.com/taulwps/fp/art110 http://law.bepress.com/taulwps/fp/art110 Thu, 23 Jul 2009 14:12:43 PDT In order to succeed in a tort suit under negligence per se, a victim must be of the class of persons protected by the statute and his injury must be of the type that the statute was intended to prevent. Referring to them as "the limiting liability conditions", this Article calls for a diminishment of their role in determining liability in torts. It is argued that whenever non-compliance with a statutory provision increases risks to the class of persons the victim belongs to or of the type of injury the victim suffered and those risks are foreseeable, there is a strong prima facie case for recognizing liability.This is valid even when the risks that materialized are usual, or background, risks that in themselves would not justify the enactment of the statute. The Article also shows that many court decisions that applied the limiting liability conditions and excluded tort liability because the conditions were not met could have reached the same outcome but on different grounds. Finally, the Article extends its normative argument to common law negligence. Ariel Porat Law and Economics Torts http://law.bepress.com/taulwps/fp/art109 http://law.bepress.com/taulwps/fp/art109 Fri, 12 Jun 2009 04:46:47 PDT Exclusion is in vogue in property discourse: the right to exclude is often considered property's most defining feature. In this essay, I criticize exclusion-centrism in property theory and argue that inclusion is also a key component of property. Property is an umbrella for a diverse set of property institutions, and defies a perception viewing the right to exclude, or indeed any other feature, as the ultimate core of its definition. To illustrate this point, the essay points to three examples--the law of public accommodations, the copyright doctrine of fair use, and the law of fair housing, notably in the contexts of common-interest communities and leaseholds. The essay shows that limits on the right of owners to exclude, either by refusing to sell or lease or by insisting that non-owners refrain from physically entering their land, are quite prevalent in property law. It further argues that, in these examples, the right of non-owners to inclusion (to buy, rent, or physically enter) should not be viewed as an embarrassing aberration but rather as entailed by the very values that shape property institutions in the first place. I thus conclude that, although less characteristic, manifestations of inclusion are just as intrinsic to property as those of exclusion, and should not be analyzed as external limitations or impositions. Hanoch Dagan Housing Law Intellectual Property Law Jurisprudence Property-Personal and Real http://law.bepress.com/taulwps/fp/art108 http://law.bepress.com/taulwps/fp/art108 Sun, 24 May 2009 12:13:17 PDT It is widely acknowledged that the regulatory power that globalization has transferred to international organizations has largely been vested in the executive branches of a few powerful states that were the system's principal architects. The combination of such overly concentrated executive power and the international system's relative lack of structural checks and balances that safeguard democratic deliberation and human rights in domestic settings should be an important source of concern for those worried about democratic deficit at the global level. Of particular concern is the fact that judicial oversight, the principal structural check on executive power at the international level, remains very limited. Even those international tribunals with relatively broad mandates, like the International Court of Justice, possess far less independence than their domestic counterparts and the international judicial system is more fragmented and less hierarchical than that in most democracies. In this essay we argue that progress in containing executive power via judicial review is still possible, but that it is likely to be driven primarily from below by national court-led process of inter-judicial coordination that could eventually involve both national courts and international tribunals. Eyal Benvenisti International Law Judges Public Law and Legal Theory http://law.bepress.com/taulwps/fp/art107 http://law.bepress.com/taulwps/fp/art107 Sun, 24 May 2009 11:51:03 PDT Nonstate actors exploit and, hence, challenge two basic assumptions that have grounded jus in bello since its inception: that it is possible to compartmentalize the battlefield and isolate with sufficient clarity, military from civilian targets and that there are clear objectives to any military campaign, such as gaining control over territory. With no tangible military objectives, regular armies are often tempted to simply capture or kill as many of their opponents as possible or to intimidate their opponents' non-combatant constituency. The essay argues that those concerned with the protection of non-combatants in such asymmetric conflicts should consider introducing jus ad bellum considerations in assessing compliance with jus in bello obligations. Eyal Benvenisti Human Rights Law International Law Military Law Public Law and Legal Theory http://law.bepress.com/taulwps/fp/art106 http://law.bepress.com/taulwps/fp/art106 Tue, 12 May 2009 09:42:53 PDT Assaf Likhovski Legal History http://law.bepress.com/taulwps/fp/art105 http://law.bepress.com/taulwps/fp/art105 Tue, 12 May 2009 09:32:57 PDT Attending to an underdeveloped lacuna in Weber's sociology of law, this essay examines the relationship between protestant theology and the emergence of modern, rational legal systems. The essay argues that radical Protestantism inspired demands for the rationalization of English law, and while not successful in bringing about the concrete changes advocated, that central features of Weber's notion of rational legal thought were also central in the theology of the radical Protestants. Examining the legal thought of two groups that appeared during the English Revolution - the Levellers and the Diggers- the essay shows how theology provide these groups with a model for a more predictable law, offered them a source for the norms for their proposed legal system and motivated the desire for law reform. Assaf Likhovski Legal History http://law.bepress.com/taulwps/fp/art104 http://law.bepress.com/taulwps/fp/art104 Tue, 12 May 2009 05:44:46 PDT This Article tells the story of two legal cooperation projects established by the Israeli Ministry of Justice in the 1950s and 1960s. The Article argues that the history of these projects can suggest a new way of understanding the process of legal transplantation. Much of the literature on legal transplants focuses on the legal norms transplanted.This Article seeks to shift the focus of the debate from a discussion of the legal norms transplanted to a discussion of the social acts involved in the process of transplantation. The Article argues that while transplantation may be motivated by practical considerations,such as the desire to obtain foreign norms which are deemed superior to local law, it is sometimes also a process of signaling. The two legal cooperation projects discussed in the Article, it is argued, were, to a certain extent, signaling devices used to communicate to Israel's potential allies the fact that Israel was part of the civilized world, and thus a partner worthy of its cooperation, and also the fact that Israel was a state stable and strong enough to survive in the hostile environment into which it was born. Assaf Likhovski Legal History http://law.bepress.com/taulwps/fp/art103 http://law.bepress.com/taulwps/fp/art103 Sun, 15 Mar 2009 11:49:12 PDT Should a court convict a defendant for unspecified offenses if there is no reasonable doubt that he committed an offence, even though no particular offence has been proven beyond reasonable doubt? Suppose a defendant is charged with two unrelated offenses, for example, pick-pocketing and rape, allegedly committed at different times and places. The probability that he committed each one of the offenses is .9. Assume that the minimum threshold required for conviction is .95. Under prevailing evidence law, the defendant would be acquitted of both charges since no offense can be specifically attributed to him. However, a simple calculation of the probability that the defendant committed at least one offense amounts to .99. Consequently, it seems that convicting him for one offense without specifying what this offense is and punishing him with the sanction designed for the least severe offense would be just and efficient. We call the principle that requires such an aggregation the "Aggregate Probabilities Principle" (APP). This Article establishes that under certain conditions, deterrence, efficient law enforcement, and minimization of adjudication errors would be better achieved were courts to apply such an APP. The Article also addresses the most powerful possible objections to this method and suggests that the aggregation principle be adopted only under strict conditions that preclude its potential abuse by the prosecution. In addition, the Article shows that sometimes aggregating probabilities will yield less, rather than more, convictions. If the APP is adopted, the presumption of innocence currently applied with regard to the offense will be replaced by a presumption of innocence applied to the accused. Alon Harel Criminal Law and Procedure Evidence Law and Economics Law Enforcement and Corrections Practice and Procedure Public Law and Legal Theory RICO Torts http://law.bepress.com/taulwps/fp/art102 http://law.bepress.com/taulwps/fp/art102 Tue, 03 Mar 2009 00:42:01 PST This paper explores why the law treats negative externalities (harms) and positive externalities (benefits) differently. Ideally, from an economic perspective, both negative and positive externalities should be internalized by those who produce them, for with full internalization, injurers and benefactors alike would behave efficiently. In actuality, however, whereas the law requires that injurers bear the harms they create (or wrongfully create), benefactors are seldom entitled to recover for benefits they voluntarily confer upon recipients without the latter's consent ("unrequested benefits"). One aim of this paper is to explore the puzzle of the law's differing treatment of negative and positive externalities and expose the reasons for this divergence. The paper's novel explanation for this phenomenon is the different types of obstacles possibly hindering agreement between injurers and victims, on the one side, and benefactors and recipients of benefits on the other.The paper also proposes a change to the law, with the adoption of an Expanded Duty of Restitution ("EDR"), under which, when certain conditions are met, recipients would compensate benefactors for unrequested benefits. This EDR would apply mainly to cases in which the benefits whose creation is mandated by efficiency are public goods. Public goods are characterized by their producer's inability to exclude others from consuming the good. Thus people tend to free-ride on the producer's investment and refuse to share in the costs of producing the public good. As a result, without government intervention, many public goods whose production is efficient are currently not being created. An EDR would solve the free-riding problem in such cases and would facilitate efficient private production of public goods. Ariel Porat Contracts Land Use Planning Law and Economics Law and Society Property-Personal and Real Remedies Torts