Copyright (c) 2010 University of Illinois College of Law All rights reserved. http://works.bepress.com/uilaw Recent documents in University of Illinois College of Law en-us Mon, 22 Mar 2010 01:49:53 PDT 3600 http://works.bepress.com/clifford_henson/5 http://works.bepress.com/clifford_henson/5 Sat, 13 Mar 2010 06:50:02 PST Abstract: Political scientists, and increasingly legal scholars, have become skeptical of judges' attempts to explain decisions based exclusively on applying fact to law, and have attempted to identify factors that influence judicial decision-making. This study isolates a set of cases dealing with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and identifies variable sets corresponding to factors one would expect to be significant under competing models of judicial decision-making. While both the legal and extra-legal model independently explain some judicial decision-making, the legal model has more explanatory power and adds significantly to the explanatory power of the extra-legal model, while the extra-legal model does not add significantly to the explanatory power of the legal model. Further, some significant factors in judicial decisions may be open to manipulation by litigants. Clifford Chad Henson Administrative Law Courts Economics Environmental Law Judges Jurisprudence Law and Economics Politics http://works.bepress.com/tom_ginsburg/31 http://works.bepress.com/tom_ginsburg/31 Wed, 03 Mar 2010 21:36:18 PST Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, or sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions. Tom Ginsburg Comparative Law Constitutional Law http://works.bepress.com/ekow_yankah/2 http://works.bepress.com/ekow_yankah/2 Sun, 28 Feb 2010 15:50:58 PST Prostitution in America is widespread and the harms associated with the sex trade are heartbreaking. Many moved by these harms have argued that there is nothing immoral about prostitution. Others have tried to show that a properly liberal government demands that we separate our moral and legal views. Despite persistent arguments by academics and reforms, little progress has been made in reforming prostitution laws and protecting vulnerable of women. Arguments that prostitution is not immoral or the appropriate liberal role of government fail to respect deeply held moral intuitions and thus cannot garner the consensus for reform. This article argues that progress cannot be made so long as reform arguments are premised on particular or controversial philosophical arguments. Rather, it is critical to see that from a wide range of philosophical starting points, one can agree with the commonly held intuition that prostitution is immoral without advocating legally prohibiting it. The major insight here is to stop viewing prostitution as intractably controversial. Most importantly and in contrast with prior efforts advocating reform, this article shows that agreement is not limited to traditional liberal positions but that agreement is possible even for those committed to the idea that the purpose of law is to promote virtue. Ekow N. Yankah Criminal Law and Procedure General Law Jurisprudence Law and Society Politics Public Law and Legal Theory Social Welfare Women http://works.bepress.com/ribstein/23 http://works.bepress.com/ribstein/23 Sat, 13 Feb 2010 12:28:10 PST Most of the work on jurisdictional competition for business associations has focused on publicly held corporations and the factors underlying Delaware's dominance in attracting formations of large out-of-state corporations. We examine an analogous jurisdictional competition to attract formations by closely held limited liability companies (LLCs). The LLC offered the first attractive business form for closely held limited liability firms unconstrained by the legacy of corporate default rules. State legislatures have adopted and changed LLC statutes rapidly over the past 20 years. Unlike general and limited partnerships, which have been shaped by uniform laws, LLC statutes vary significantly. These circumstances offer an opportunity to test statutory provisions and other factors that influence LLC's choice of where to organize. Exploiting a new database that for the first time reveals home and formation states of closely held firms, we find evidence that large LLCs, like large corporations, tend to form in Delaware, and that they do so for the many of the same reasons - that is, for the quality of Delaware's legal system. We reject other potential explanations for LLCs' formation decisions based on variations in state statutory provisions. Our evidence sheds new light on forces underlying the market for law. Larry E. Ribstein Corporations Law and Economics Legislation Organizations Partnerships http://works.bepress.com/ribstein/22 http://works.bepress.com/ribstein/22 Sat, 13 Feb 2010 06:57:59 PST Large law firms face unprecedented stress. Many have dissolved, gone bankrupt or significantly downsized in recent years. This paper provides an economic analysis of the forces driving the downsizing of Big Law. It shows that this downsizing reflects a basically precarious business model rather than just a shrinking economy. Because large law firms do not own durable, firm-specific property, a set of strict conditions must exist to bind the firm together. Several pressures have pushed the unraveling of these conditions, including increased global competition and the rise of in-house counsel. The large law firm's business model therefore requires fundamental restructuring. Combining insights from the theory of the firm, intellectual property, and the economics of legal services, this paper discusses new models that might replace Big Law, how these new models might push through regulatory barriers, and the broader implications of Big Law's demise for legal education, the creation of law and lawyers' role in society. Larry E. Ribstein Law and Economics Legal Profession Organizations Partnerships http://works.bepress.com/clifford_henson/4 http://works.bepress.com/clifford_henson/4 Fri, 12 Feb 2010 08:58:14 PST Political scientists, and increasingly legal scholars, have become skeptical of judges' attempts to explain decisions based exclusively on applying fact to law, and have attempted to identify factors that influence judicial decision-making. This study isolates a set of cases dealing with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and identifies variable sets corresponding to factors one would expect to be significant under competing models of judicial decision-making. While both the legal and extra-legal model independently explain some judicial decision-making, the legal model has more explanatory power and adds significantly to the explanatory power of the extra-legal model, while the extralegal model does not add significantly to the explanatory power of the legal model. Further, some significant factors in judicial decisions may be open to manipulation by litigants. Clifford Chad Henson Law and Economics Economics Environmental Law Judiciary http://works.bepress.com/tom_ginsburg/30 http://works.bepress.com/tom_ginsburg/30 Sun, 20 Dec 2009 05:21:55 PST The Constitutional Court of Korea recently celebrated its 20th anniversary, and has become one of the most respected institutions in Korean society. It is also one of the most important constitutional courts in the world. This book chapter describes the court and some of its important cases, while tracing the sources of its success. Tom Ginsburg Asia http://works.bepress.com/tom_ginsburg/29 http://works.bepress.com/tom_ginsburg/29 Sun, 20 Dec 2009 05:13:15 PST Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational institutions reaching deep into the way states govern themselves and treat their own populations. Eastphalia may be Westphalia without the universalism--a kinder, gentler Westphalia. Tom Ginsburg International Law Asia http://works.bepress.com/tom_ginsburg/28 http://works.bepress.com/tom_ginsburg/28 Sun, 20 Dec 2009 05:08:56 PST This chapter explores the experience of China's East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China's own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and because many of them developed their judicial systems during periods of authoritarian governance. Finally, the East Asian cases, like contemporary China, seem to challenge the conventional wisdom that a powerful legal system is necessary for sustained economic development. My argument is that these cases provide nuanced lessons for the Chinese case about the definition of and conditions for judicial independence. Tom Ginsburg Asia Judges http://works.bepress.com/tom_ginsburg/27 http://works.bepress.com/tom_ginsburg/27 Sun, 20 Dec 2009 05:04:49 PST For over four decades, Lawrence Friedman has been one of the key figures in American law and society studies, as well as the country's leading legal historian. His unique vantage point has brought him into contact with a wide range of subfields in legal studies, including comparative law. Though he has never published in the leading journals of the discipline, Friedman's series of book chapters and articles commenting on the field of comparative law have articulated a consistent and important methodological challenge. This essay elaborates Friedman's comparative jurisprudence and argues that comparative law since the 1960s would have been much more fruitful had it followed Friedman's advice to engage with the law and society tradition. The essay also critiques Friedman's use of legal culture as the central focus of analysis. Friedman emphasizes similarities across societies, and hence rejects claims of incommensurability at a theoretical level. But in employing the empirically problematic concept of legal culture as his central explanatory variable, Friedman recreates incommensurability at a practical level. Tom Ginsburg Comparative Law