Copyright (c) 2009 University of Southern California Law School All rights reserved. http://law.bepress.com/usclwps Recent documents in University of Southern California en-us Tue, 10 Nov 2009 23:24:38 PST 3600 http://law.bepress.com/usclwps/lss/art54 http://law.bepress.com/usclwps/lss/art54 Mon, 09 Nov 2009 16:40:37 PST TVA v. Hill, often noted for its importance in shaping environmental law, is also a key case in statutory interpretation law. The case involves the conflict between finishing the Tellico Dam and Reservoir, a project of the Tennessee Valley Authority that many characterized as pork barrel spending, and protecting the habitat of the rare snail darter fish. Although the Supreme Court's decision halted construction of the nearly finished dam, Congress subsequently passed legislation ordering completion of the reservoir project. Drawing on key legislative materials and judicial documents, Professor Garrett shows how this case illuminates the interactions among the three branches of government on a question of statutory interpretation. Participants in all branches of government were keenly aware of the involvement of the other governmental actors and made their decisions in light of expected reactions by others. This chapter traces the Tennessee Valley Authority's decision to build the Tellico Dam and the years of congressional attention to the project through the annual appropriations process; details the litigation brought to stop the dam by a law professor and his students; and analyzes legislative reactions to the Supreme Court decision interpreting the Endangered Species Act to protect the snail darter's habitat. The story of TVA v. Hill illustrates that, despite internal rules discouraging appropriations riders and the judicial canon disfavoring such provisions, Congress can achieve its purposes by passing a clearly worded provision within the text of annual appropriations bills. Elizabeth Garrett Environmental Law Legislation Politics http://law.bepress.com/usclwps/lewps/art108 http://law.bepress.com/usclwps/lewps/art108 Wed, 21 Oct 2009 10:48:46 PDT This paper uses mechanism design theory to analyze how elementary and secondary private schools decide which students to admit from their applicant pool when wealth is private information. The problem for an individual private school of who to admit and how much to charge in tuition, is complicated by the existence of peer-effects: the value students place on attending school is increasing with the average ability of the entire class at that school. This feature, coupled with the fact that students can always attend public school for free, places constraints on the types of classes the private school can admit. An incentive compatible allocation rule which admits only high ability students violates the private school's operating constraint, while an allocation rule which admits only on the basis of wealth violates student participation constraints. Recognizing the costs associated with verifying wealth type can assist in explaining the structure of tuition contracts between students and private schools. Nina Walton Economics Education Law Law and Economics Law and Society http://law.bepress.com/usclwps/lewps/art107 http://law.bepress.com/usclwps/lewps/art107 Thu, 01 Oct 2009 09:06:30 PDT I model a …firm where shareholders choose the manager's compensation in light of the manager's dual roles of exerting effort and making disclosures regarding the …firm's value. Because of limited contracting ability and the divergence of short-term interest between shareholder and manager, shareholders may be unable to obtain their …first-best choices of effort and disclosure policy; where agency costs are too large, shareholders will be unwilling to award performance-based compensation, which induces both effort and fraudulent reporting. The principal …findings are (1) fraud and effort are positively correlated, and given a poor outcome fraud is more likely to obtain when effort is exerted in equilibrium, (2) the incidence of fraud-inducing compensation increases as agency costs decrease, and (3) reductions in agency costs actually increase the incidence of fraud when agency costs are high. James C. Spindler Corporations Economics Law and Economics Securities Law http://law.bepress.com/usclwps/lss/art53 http://law.bepress.com/usclwps/lss/art53 Fri, 25 Sep 2009 08:47:23 PDT In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to "Be a man. Stand up and fight." If he is raped, the victim is often told that he is--or has been made--"gay," and therefore "liked it." Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment. In prison and in court, legal actors depart from ordinary legal rules to enforce the norms of masculinity as law, authorizing straight-identified manly men to police the gender conformity of less manly men by sexually abusing them.Although correctional actors often respond to sexual abuse by enforcing gender rules, the story they tell about prison rape often features a familiar, but misleading, cultural trope of white vulnerability to black violence. This racial narrative obscures institutional responsibility for the gendered legal practices that condone and foster sexual violence, making prison rape seem inevitable. By casting sexual (and nonsexual) violence as a "complex and intractable problem" for which administrators are not to blame, this racial narrative bolsters the rationale for the rules and immunities which largely exempt prisons from the enforcement of constitutional norms. Thus the perception (and reality) of unchecked prison violence supplies a reason for courts not to interfere with the unlawful institutional practices that foster it. Kim S. Buchanan Civil Rights Constitutional Law Criminal Law and Procedure Law and Society Public Law and Legal Theory Sexuality and the Law Women http://law.bepress.com/usclwps/lss/art52 http://law.bepress.com/usclwps/lss/art52 Wed, 23 Sep 2009 10:00:01 PDT The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy. Mary L. Dudziak Constitutional Law Courts Human Rights Law Law and Society Legal History Politics Public Law and Legal Theory http://law.bepress.com/usclwps/lewps/art106 http://law.bepress.com/usclwps/lewps/art106 Tue, 15 Sep 2009 09:36:01 PDT When economic development or urban redevelopment is funded by tax increment financing (TIF), local government officials, in their haste to pump up local tax receipts, may become overzealous in displacing some private land users to make way for private developers They are also tempted to hog property tax revenues collected from the project area and use it to repay redevelopment agency debt. These tax proceeds would previously have been divided among cities, counties, school districts and other taxing entities. This paper is about the legal solutions afoot to deal with these controversial aspects of TIF funded economic development--displacement of private owners for private development projects and diversion of the property tax base from other taxing entities.Most states require findings of blight as a pre-condition to economic development or redevelopment projects. They hope their blight tests will meet 'public use' challenges and steer local governments away from economic development projects of questionable value. But blight definitions vary greatly. Some are so expansive and vague as to be virtually meaningless as constraints. Also, the same definition of blight cannot fulfill both these functions adequately because a blight definition protective of property owners must shield unblighted properties from the threat of condemnation while a blight norm meant to limit economic development to areas that desperately need rejuvenation must be predicated on an area wide basis, and include unblighted properties necessary for a successful economic development effort.This paper recounts the measures that most states have enacted to complement or replace blight tests. Among these, states have enacted outright prohibitions on economic development takings, approved more generous compensation standards, instituted reforms in the planning process favoring citizen participation, and mandated condemnor's to negotiate acquisition prices fairly. States have also legislated to safeguard school districts and other taxing entities from having their tax bases raided by opportunistic economic development projects. These enactments are described briefly here as well.At the same time, state courts have been responding to 'public use' challenges to economic development takings in the wake of Kelo v. City of New London. Local governments undertake economic development projects to spike local tax and job rolls, enhance urban infrastructure (street improvements, ball parks, affordable housing), and advance planning norms, such as those favoring increased urban densities to facilitate the use of public transit. Many courts seem sensitive to the purposes of economic development projects and are more sympathetic to projects offering traditional 'public goods' such as infrastructure and planning improvements than they are to projects with no apparent 'public use' other than to increase the redeveloping jurisdiction's tax rolls. George Lefcoe Housing Law Land Use Planning Property-Personal and Real Taxation http://law.bepress.com/usclwps/lss/art51 http://law.bepress.com/usclwps/lss/art51 Wed, 09 Sep 2009 14:26:39 PDT This paper addresses two related questions.The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell's work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell's method by describing certain logic texts that describe the Nineteenth Century conception of scientific methodology. This enables us to recreate not only the substance of Langdell's theory, but also its method. Further, understanding its method allows us to ask crucial questions about justification: What is it that makes Langdell believe that his theory of contract law is correct?The second question addressed in this paper relates to legal theory and the use of doctrinal theories in legal decision making. As a pragmatist, I reject the idea that there is one form of legal reasoning. Instead I believe that the courts employ a variety of strategies to navigate between the demand for justice in the individual case and the need to develop general theories that can be used to predict future decisions. Doctrinal theories are one of these strategies and, without question, a very important one. In the final section I use what we have learned about Langdell to identify the way in which doctrinal theories work and to explain their success. Wells Contracts General Law Jurisprudence Law and Society Legal History http://law.bepress.com/usclwps/lewps/art105 http://law.bepress.com/usclwps/lewps/art105 Tue, 08 Sep 2009 14:17:54 PDT We typically assume that intellectual property makes a substantial difference in regulating access to intellectual goods and thereby provides incentives for the production of intellectual goods. But the existence of alternative instruments by which to appropriate innovation returns suggests that even substantial changes in intellectual property may often make little difference in regulating access, which in turn means that those changes may often make little difference in regulating innovation incentives. This raises a conundrum: in markets where "more or less IP" exerts no substantial effect on access costs and innovation gains, why do firms expend resources on influencing changes in intellectual property? The answer lies in the distribution across firms of the costs of substitution toward alternative appropriation instruments. Changes in intellectual property still exert nontrivial incentive/access effects so long as the relative costs of using alternative instruments are not equally distributed across firms. Where that is the case, changes in intellectual property can be decisive--but not, as is conventionally assumed, with respect to the total gains available as a result of the appropriation capacities provided by legal instruments, but with respect to the distribution of those gains among firms that exploit the appropriation capacities provided by a portfolio of legal and extralegal instruments. If alternative instruments are not available to all firms at comparable cost, then relaxations of intellectual property will shift gains to firms that have the lowest-cost access to alternative instruments and away from firms that have the highest-cost access to alternative instruments. The typical abundance of alternative instruments among incumbents and the typical paucity of such instruments among entrants in turn implies (contrary to conventional intuitions) that the distributive effects of relaxing intellectual property may often be "regressive" and the distributive effects of strengthening intellectual property may often be "progressive". The conventional incentive thesis for intellectual property may therefore retain a significant scope of application, but for an unconventional reason: it induces innovation by firms that would otherwise be disadvantaged by incumbents' cost advantage in capturing innovation returns through instruments other than intellectual property. Jonathan M. Barnett Intellectual Property Law Law and Economics http://law.bepress.com/usclwps/lewps/art104 http://law.bepress.com/usclwps/lewps/art104 Wed, 02 Sep 2009 16:05:39 PDT Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory--connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher's identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the costs of accidental injury across those who benefit from the imposition of the underlying risks. Put differently, this paper argues that Rawlsian ideas support a powerful general case for preferring strict enterprise liability to negligence liability. Under the characteristic circumstances of modern life--where risk is the byproduct not of discrete acts but of organized activities enterprise liability distributes the burdens of risky but mutually beneficial activity more fairly than negligence liability does. Gregory C. Keating Consumer Protection Law Jurisprudence Torts http://law.bepress.com/usclwps/lewps/art103 http://law.bepress.com/usclwps/lewps/art103 Wed, 19 Aug 2009 08:51:22 PDT In Abusing 'Duty' we argued that California courts have been abusing duty by issuing highly particularized rulings which reach no father than the facts before the court. The role of duty doctrine is to fix the legal standard applicable to the defendant's conduct. Highly particular rulings distort duty by failing to articulate law. They deform the substance of negligence law and disrespect the role of the jury. California's burgeoning 'no duty' decisions also trace a troubling whole; it devalues the physical integrity of the person and exalts unfettered dominion over real property and the unfettered pursuit of mutual advantage in the marketplace. Our arguments did not go unchallenged, especially by John Goldberg & Ben Zipursky. In this paper we respond to their criticisms and engage the position of the Third Restatement, to which we are largely sympathetic. In our view, Professors Goldberg & Zipursky mischaracterize negligent wrongdoing by presenting negligence as a personal affront akin to a knife in the back or a boot on the neck. Negligence is a more abstract wrong and a more abstract relation - a failure to show sufficient regard for an indefinite plurality of unknown persons who might come to grief from one's carelessness. Personalizing duty is a mistake with far-reaching consequences. When duty is personalized, it no longer functions to determine the existence of an obligation in tort - to determine whether or not the defendant was required to exercise reasonable care for the protection of a class of persons including the plaintiff. It becomes instead a license to determine the exact contours and scope of the obligation owed to any particular plaintiff. Duty begins to swallow breach and proximate cause, and the domain of the judge begins to consume the domain of the jury. Duty is converted from the first element of plaintiff's case and a non-issue almost all of the time into the master concept of negligence law. This deforms tort doctrine and invites the very kind of judicial abuse that disturbs us - a degradation of the judicial role and a usurpation of the jury's role by collapsing the line between law articulation and law application. Worse still, personalizing duty threatens to undermine the moral universalism that is the great achievement of twentieth century tort law. Personalizing duty tends to obscure the hard won insights that everyone's physical integrity is worthy of respect and counts equally, and that our shared interest in the physical integrity of our persons trumps our competing interests in the free use of real property and the unfettered pursuit of mutual advantage in the marketplace. We have, therefore, ample reason to keep duty in its place. Dilan Esper Consumer Protection Law Law and Society Products Liability Torts