Yale Law Library - Reference Blog
Browse by Tags
Research Preparation for your Supervised Analytical Writing
This fall, the Law Library will be hosting a series of fall research seminars focused on helping law students
prepare for their supervised analytical writing (SAW) assignment by
demonstrating the emerging technologies in the field of legal research.
Students will learn about helpful (and not so helpful) legal
databases, how to search for information and how maintain legal
research records. Lecturers will showcase subscription based as well
as open source tools for legal research. These seminars are open to
the whole law school community. The first event is:
Emerging Technologies in Documenting and Tracking Your Research
Wednesday, September 17, 2008; 3:00 - 4:00 p.m. - Room 112
Participants will learn how to manage their electronic research using tools such as RSS feeds, Zotero, Google, etc. Cookies and light refreshments will be served.
If you were unable to attend this event, please contact Reference Librarian Camilla Tubbs for information on these important research tools.
Investing and retirement, what to do?
Take a look at this recent article.
Ayres, Ian and Nalebuff, Barry J., "Life-Cycle Investing and Leverage: Buying Stock on Margin Can Reduce Retirement Risk"
(May 27, 2008).
Available at SSRN: http://ssrn.com/abstract=1139110
Abstract: By employing leverage to gain more
exposure to stocks when young, individuals can achieve better
diversification across time. Using stock data going back to 1871, we
show that buying stock on margin when young combined with more
conservative investments when older stochastically dominates standard
investment strategies - both traditional life-cycle investments and
100%-stock investments. The expected retirement wealth is 90% higher
to life-cycle funds and 19% higher compared to 100% stock investments.
The expected gain would allow workers to retire almost six years
earlier or extend their standard of living during retirement by 27
Constitutional Limits on State's foreign affairs activities
Douglas Kysar (YLS) and Bernadette Meyler (Cornell) have a new paper up at SSRN. The paper is also published in the UCLA Law Review: Kysar, Douglas A. and Meyler, Bernadette A., "Like a Nation State"
UCLA Law Review, Vol.55, No. 6, 2008.
Here's the abstract:
Using California's self-consciously internationalist approach to
climate change regulation as a primary example, this Article examines
constitutional limitations on state foreign affairs activities. In
particular, by focusing on the prospect of California's establishment
of a greenhouse gas (GHG) emissions trading system and its eventual
linkage with comparable systems in Europe and elsewhere, this Article
demonstrates that certain constitutional objections to
extrajurisdictional linkage of state GHG emissions trading systems and
the response that these objections necessitate may be more complicated
than previously anticipated. First, successfully combatting the Bush
Administration's potential claim that state-level climate change
activities interfere with a federal executive position of withholding
binding domestic GHG reductions in advance of a multilateral agreement
including key developing nations, will require demonstrating that the
executive branch is not acting with congressional support and has,
furthermore, declared its position too informally to constitute an
exercise of any of the president's independent constitutional powers.
Second, state efforts to link GHG emissions trading systems with those
of other nations may well take them into territory abutting that which
is constitutionally impermissible under the foreign affairs and Foreign
Commerce Clause doctrines. Finally, state efforts to integrate with
other trading schemes or to otherwise protect the integrity of their
own trading schemes must be carefully constructed lest they invite
challenge as being discriminatory or overreaching, in light of more
conventional dormant Commerce Clause constraints on state regulation.
What paradigm for the gay rights movement?
In a new paper posted at SSRN and post to Balikinization, Professor Heather Gerken argues that equality and, therefore, the equal protection argument, not liberty is the proper and mpst promising paradigm for future gay rights litigation. Here is the abstract to the paper:
This essay - penned as a tribute to Larry Tribe - argues that equality, not liberty, represents the most promising framework for future gay-rights litigation. The paper begins by arguing that the stylistic differences between the two opinions in Lawrence v. Texas signal something important about the shortcomings of the liberty paradigm. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. We thus see Justice Kennedy, with his penchant for abstract prose, describing the case at a high level of generality in vindicating Lawrence's challenge to Texas' sodomy law. But note that the opinion's fluid prose ends precisely when the opinion moves from the general to the specific. Kennedy's high-flown abstractions are ill-suited to addressing facts on the ground. If Justice Kennedy is too abstract in his prose, Justice Scalia is too concrete. Scalia's groundedness makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort with the gap between the particular and the abstract. But Scalia's insistence that the case is about nothing more than the right to engage in a particular type of sex act ensures that his opinion, too, misses something important about what is at stake in Lawrence.
Having outlined the shortcomings of the two opinions, the remainder of the essay argues that equal protection, not liberty, is the right paradigm for future gay-rights litigation. Equal protection is pitched at the right level of generality; it captures what we are fighting about. Larry Tribe may find it easy to toggle between liberty and equality when writing about substantive due process. Like Justice Brandeis, he is "the master . . . of both microscope and telescope." In the parts of his work where he connects the Court's liberty decisions, he shows us constellations where the rest of us saw only a random collection of stars. In other parts of his work, he offers a granular view, describing the relationship between liberty and equality as a double helix. For everyday judges and lawyers, however, doctrinal analysis starts with doctrinal categories. It thus seems inevitable that Tribe's double helix will be split. And if courts must choose between these admittedly intertwined paths, we will get closer to the vistas Tribe describes if judges follow the path of equal protection, not liberty. That is because what is a stake in these debates is not whether all humans should enjoy a right, but whether gays and lesbians, in particular, should do so, and that is an idea better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown right to intimate relations and Justice Scalia's down-and-dirty discussion of sodomy is the status of the LGBT community. Equal protection begins with that issue while allowing the Court to write with a worthy tradition behind it.
Market Damages, Efficient Contracting and the Economic Waste Fallacy
is the title of a new paper by Alan Schwartz and Robert E. Scott (Columbia) posted on SSRN. Here's the paper and here's the abstract:
Market damages - the difference between
the market price for goods or services at the time of breach and the
contract price - are the best default rule whenever parties trade in
thick markets: they induce parties to contract efficiently and to trade
if and only if trade is efficient, and they do not create ex ante
inefficiencies. Courts commonly overlook these virtues, however, when
promisors offer a set of services some of which are not separately
priced. For example, a promisor may agree to pay royalties on a mining
lease and later to restore the promisee's property. In these cases,
courts compare the cost to the promisor of providing the service that
was not supplied to the increase in the market value of the
promisee/buyer's property had the promisor/seller performed. When the
cost of completion is large relative to the "market delta"- the
increase in market value - courts concerned to avoid "economic waste"
limit the buyer to the market value increase. This concern is
misguided. Since the buyer commonly prepays for the service at the ex
ante market price, a cost of completion award actually has a
restitution element - the prepaid price - and an expectation interest
element - the market damages. The failure to recognize the joint nature
of cost of completion damages causes courts to deny these damages more
frequently than they should. In this paper, we argue that the
unappreciated virtues of market based damages justify removing the
courts' discretion to deny them no matter how high they appear to be.
The rule that denies buyers market damages induces excessive entry into
these service markets. Moreover, buyers are under-compensated when they
prepay and cannot recover the price paid for the breached services but
instead are restricted to the market delta. As a result, too few buyers
contract ex ante for the relevant service and surplus maximizing
contracts are forgone. Finally, sellers often can take actions in the
interim between making the contract and the time for performance of the
service that would reduce the service cost to manageable proportions.
Sellers are less likely to take these precautions if they are required
to pay buyers only the market delta rather than the full performance
cost that their actions could have avoided.
Another fascinating paper from Professor Hathaway, "The Continuing Influence of the New Haven School." Originally published in 32(2) Yale Journal of International Law in 2007. Here is the abstract:
This Commentary examines the deep and
abiding influence of what has been called the New Haven School of
international law. It considers the connection between the past and the present the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced.
Paper on SSRN
Professor Hathaway has posted a paper originally published in the journal International Organization in 1998 (v. 52, no. 3) on SSRN, entitled "Positive Feedback: The Impact of Trade Liberalization on Industry Demands for Protection".
Here is the abstract:
This article proposes a theory of
dynamic industry preferences and strategies to explain variation in
industries' demand for trade protection over time. This theory shows
how the characteristics of industries affect their demand for trade
policy and how, in turn, trade policy transforms industry
important implication of this theory is that trade liberalization tends
to reduce, rather than increase, industry demand for protection over
the long term. The article begins by developing a static model of
industry decision making that illustrates how producers faced with a
reduction in trade barriers weigh the costs and benefits of political
action and economic adjustment. It then explains how the strategic
choices of an industry are determined by key industry characteristics
that evolve over time in response to changes in trade policy and market
conditions. In particular, it demonstrates that reductions in trade
barriers may have a positive feedback effect that dampens rather than
amplifies domestic protectionist sentiment. To test this model, the
article examines the dramatic postwar transformation of three
industries that have historically demanded and received extensive
import protection: the footwear, textile, and apparel industries. The
article concludes with an assessment of the model and a discussion of
its possible implications for our understanding of the politics of
Review of Kahn, Out of Eden: Adam and Eve and the Problem of Evil
Nice review in the Times Literary Supplement by John Habgood, the former Archbishop of York:
A book which begins with the sentence “Evil makes us Human” must surely compel
attention. This is no ordinary account of what is usually meant by the
problem of evil, where the main emphasis is on justifying the ways of God to
man. Instead, Paul W. Kahn’s aim is to explore the nature of evil itself. He
interprets it, not just as doing or experiencing bad things, but as “a way
of being in the world”. Evil, he claims, is about making ourselves the
source of our own meaning, a meaning inevitably negated by death, the
certainty of which gives urgency and depth to the way life is lived. It is
this consciousness of our mortality, and the refusal to accept its
implications, which can lead to the worship of false gods. Ascribing
ultimate value to what is essentially nothing at all results in what he
calls “a pathology of the will”. Personal evil is essentially about
wilfulness rather than reason, nor can it be subsumed within our rational
understanding. Evil in this sense, as part of our humanity, is not a
fashionable concept, but we have good reasons to recognize it, not least in
--- more ---
Three recent law review articles by members of the faculty:
Ian Ayres and Gideon Parchomovsky, Tradable Patent Rights, 60 Stan. L. Rev. 863 (2007)
Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 Theoretical Inquiries L. 271 (2008)
Judith Resnik, No Daubert Hearing Necessary: The Extraordinary Expertise of
Margaret Berger, 16 J.L.
& Pol'y 6 (2007)
New SSRN Working Paper
Dan Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk
Abstract: Cultural cognition refers to the tendency of individuals to form
beliefs about societal dangers that reflect and reinforce their
commitments to particular visions of the ideal society. Cultural
cognition is one of a variety of approaches designed to empirically
test the cultural theory of risk associated with Mary Douglas and Aaron
Wildavsky. This commentary discusses the distinctive features of
cultural cognition as a conception of cultural theory, including its
cultural worldview measures; its emphasis on social psychological
mechanisms that connect individuals' risk perceptions to their cultural
outlooks; and its practical goal of enabling self-conscious management
of popular risk perceptions in the interest of promoting scientifically
sound public policies that are congenial to persons of diverse outlooks.
Professor Siegel has posted on SSRN a version of a paper to be published in the Duke Law Journal. The paper is entitled: "The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument". Here is the abstract:
"This Lecture investigates the social
movement dynamics that produced woman-protective antiabortion argument.
The Lecture explores the political conditions under which leaders of
the antiabortion movement began to supplement or even to supplant the
constitutional argument abortion kills a baby with a new argument,
abortion hurts women - a claim that achieved widespread public notice
with the Supreme Court's 2007 decision in Gonzales v. Carhart.
Lecture's genealogy of a social movement claim begins in the 1980s,
when members of the antiabortion movement asserted that abortion
subjects women to regret, trauma, and psychological illness, a
condition they termed post-abortion syndrome (PAS). My story then
follows changes in the abortion-harms-women claim as it was transformed
from PAS - a therapeutic discourse initially employed to dissuade women
from having abortions and to recruit women to the antiabortion cause -
into woman-protective antiabortion argument (WPAA), a political
discourse forged in the heat of social movement conflict that sought to
persuade audiences outside the movement's ranks in electoral campaigns
and in constitutional litigation.
Whereas PAS grew up as a
mobilizing discourse deployed primarily among women volunteers and
clients in the antiabortion movement's crisis pregnancy network - a
context in which abortion-hurts-women testimonials had important
expressive functions - WPAA took shape in political contexts in which
the abortion-hurts-women argument had important strategic functions. In
the 1990s, antiabortion advocates sought to explain to audiences that
ambivalently supported the abortion right why women would benefit from
legal restrictions on abortion. As they did so, they fused PAS claims
and stories with traditional gender-paternalist argument, justifying
restrictions on women's agency as needed to protect women from male
coercion and to free women to be mothers. As a political discourse
designed to rebut feminist, pro-choice claims, WPAA came to internalize
elements of the very arguments it sought to counter - fusing the public
health, trauma, and survivors idiom of PAS with the idiom of the late
twentieth-century feminist and abortion-rights movements. As the
Lecture shows, social movement mobilization, conflict, and coalition
each played a role in the evolution and spread of the woman-protective
antiabortion argument, in the process forging new and distinctly modern
ways to talk about the right to life and the role morality of
motherhood in the therapeutic, public health, and political rights
idiom of late twentieth-century America.
The Lecture concludes
by considering the new gender-paternalist justifications for abortion
restrictions discussed in Carhart. With the spread of woman-protective
antiabortion argument and its seductively modern justifications for
using law to impose motherhood on women, Justice Kennedy and the nation
will once again have to decide - not only how to balance the liberty of
the pregnant woman against the state interest in protecting potential
life - but more fundamentally, about the kind of women that
constitutional guarantees of liberty and equality protect. This
question is far from abstract, as South Dakota once again considers
whether to adopt an abortion ban, justified by fetal-protective and
woman-protective argument, in the 2008 elections."
The Law Library of Congress is making a habit of this
More great information from the Law Library of Congress, this time on the State Secrets Privilege. Here you will find links to several articles, statements, and other material by Louis Fisher regarding the privilege in this decade.
New paper at SSRN
Professor Listokin recently posted a new paper entitled "Does Shareholder Voting Maximize Stock Market Value." Here is the abstract:
"This paper examines the relation between
shareholder voting and stock market value from a novel empirical
perspective. If voting maximizes value, then the outcome of close proxy
contests should not have a systematic effect on stock prices; price
setters will anticipate that voting aggregates information efficiently
and will build this expectation into the price of the stock before the
voting outcome is announced The paper shows, however, that close
dissident victories are associated with significant positive movements
in stock prices, while close management victories are associated with
negative stock price effects.
This suggests that voting outcomes favor management rather than
maximizing value, with important policy ramifications. Viewed from a
regression discontinuity (RD) design perspective, the study provides
unique evidence that dissident control of decision making causes
increases in stock value."
Open Access to Research
It is an exciting time for researchers who are rich with intellectual curiosity, but short on cash.
The FY2008 omnibus appropriations bill
contained a provision to establish a new policy directing the National
Institutes of Health (NIH) to provide the public with free online
access to findings from its funded research. Beginning on April 7,
2008, every scientist who publishes the results of research funded by
an NIH grant in a peer-reviewed journal is required to deposit a
digital copy of the article in PubMed Central
the online digital library maintained by the NIH. The public will be
able to access these articles through PubMed Central for free!
Open access to the law has also been in the spotlight recently. Earlier this month, Creative Commons and Public.Resource.Org announced the first release of a case law available for download by developers. The release covers all U.S. Supreme Court decisions and all Court of
Appeals decisions from 1950 forward. The case law was provided by
Fastcase, Inc. which recently announced its new Public Library of Law.
In addition to this
exciting news, PACER is now available at no-fee at sixteen libraries,
thanks to a joint pilot project by the Government Printing Office and
the Administrative Office of the United States Courts.
University's Faculty of Arts and Sciences recently approved a plan to
give the University a worldwide license to make each faculty member's
scholarly articles available in a free repository and to exercise the
copyright in the articles, provided that the articles are not sold for