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Research Handbook on the Economics of Property Law

Daniel B. Kelly

Book Chapter

Daniel B. Kelly, Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives, in Research Handbook on the Economics of Property Law 344 (Kenneth Ayotte & Henry E. Smith eds., 2011)

The primary functional justifications for eminent domain involve bargaining problems, including the holdout problem, the bilateral monopoly problem and other transaction costs, as well as the existence of externalities. The holdout problem is particularly noteworthy, and this chapter analyzes three types of holdouts, depending on whether the failure in bargaining is the result of strategic behavior among owners, the presence of a large number of owners or a single owner who is unwilling to sell because of a highly idiosyncratic valuation.

Although eminent domain solves any potential bargaining problems by transferring land directly from existing owners to the government, eminent domain has limitations as well. The primary limitations are the difficulty of valuing parcels, the potential for secondary rent seeking and the existence of administrative costs. Valuing parcels is especially problematic because, in the absence of perfect information, the government may underestimate the valuations of existing owners or overestimate the valuations of future owners. In either case, eminent domain may increase the likelihood of an undesirable transfer, i.e., a transfer in which the existing owners value the land more than the future owners, even if public officials are acting to maximize social welfare rather than advance their own, or other private, interests.

Because of these limitations, scholars have proposed various alternatives for acquiring land, three of which I discuss below: (i) secret purchases; (ii) land assembly districts; and (iii) auction mechanisms. Comparing eminent domain with each of these alternatives is necessary to determine whether, or under what circumstances, it is desirable for the government to invoke eminent domain, a determination that ultimately depends on a number of important, yet relatively unexplored, empirical questions.
Schools of Jurisprudence

Robert E. Rodes Jr.

Professor Rodes defines Jurisprudence as ''the legal profession's account of what it is about.'' Since they lawyers, judges, and legislators doing their work are all looking at the same phenomenon, writers on Jurisprudence must all draw from the same limited body of material in constructing their theories. In this book, Rodes examines these materials and then classifies the various schools of Jurisprudence according to which of the materials they use and how they use them. In describing the available materials, Rodes looks first at what he calls the ''internal account'': legal work considered in itself, the definition and scope of the enterprise. He then takes up the non-legal disciplines that are or have been used in legal decision-making, and the values that are or have been considered suitable for legal implementation. The rest of the book is devoted to taking up fifteen actual schools of jurisprudence one by one, classifying them in accordance with how each one defines and limits the work of the legal profession, what other disciplines each one uses in describing or applying law, and which values each one seeks to implement through law. The aim is to be exhaustive. All the old familiar schools are included Analytical Positivism, Natural Law, and the rest. So are more recent arrivals such as Critical Legal Studies, and ideological schools such as Marxism on the one side and Wealth Maximization on the other. Rodes's presentation is clear and as free from technical language as possible in covering the subject. He is often critical, but he is careful to describe the doctrines of the different schools fairly before criticizing them. Readers, whether or not they agree with the author, will be able to learn from this book. People who wish to choose among the jurisprudential doctrines on the market will find them all displayed here, and people who wish to make up their own jurisprudential doctrine will find here all the
Federalism

Anthony J. Bellia

This exciting new book by A.J. Bellia is a unique collection of legal and scholarly materials intended for use in a range of courses, including Constitutional Law, Federalism, Federalism History, Federalism Theory, and Comparative Federalism. The first book of its kind, Federalism spans traditional subject areas, which allows a deeper and richer treatment of the subject of federalism.
Family, Law, and Community: Supporting the Covenant

Margaret F. Brinig

In the wake of vast social and economic changes, the nuclear family has lost its dominance, both as an ideal and in practice. Some welcome this shift, while others see civilization itself in peril—but few move beyond ideology to develop a nuanced understanding of how families function in society. In this provocative book, Margaret F. Brinig draws on research from a variety of disciplines to offer a distinctive study of family dynamics and social policy.

Concentrating on legal reform, Brinig examines a range of subjects, including cohabitation, custody, grandparent visitation, and domestic violence. She concludes that conventional legal reforms and the social programs they engender ignore social capital: the trust and support given to families by a community. Traditional families generate much more social capital than nontraditional ones, Brinig concludes, which leads to clear rewards for the children. Firmly grounded in empirical research, Family, Law, and Community argues that family policy can only be effective if it is guided by an understanding of the importance of social capital and the advantages held by families that accrue it.
Ordering the City: Land Use, Policing, and the Restoration of Urban America

Nicole Stelle Garnett

This timely and important book highlights the multiple, often overlooked, and frequently misunderstood connections between land use and development policies and policing practices. In order to do so, the book draws upon multiple literatures—especially law, history, economics, sociology, and psychology—as well as concrete case studies to better explore how these policy arenas, generally treated as completely unrelated, intersect and conflict.

Nicole Stelle Garnett identifies different types of urban “disorder,” some that may be precursors to serious crime and social deviancy, others that may be benign or even contribute positively to urban vitality. The book’s unique approach—to analyze city policies through the lens of order and disorder—provides a clearer understanding, generally, of how cities work (and why they sometimes do not), and specifically, of what disorder is and how it affects city life.
Christianity and Human Rights

Richard W. Garnett

Book Chapter

Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, in Christianity and Human Rights 176 (John Witte Jr. ed., 2010)

What is the “right to freedom of religion,” a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights – including the right to religious freedom – involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.

This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the “right to freedom of religion” belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.

Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy – it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, “Christianity’s basic contribution to freedom in the political order.” If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood and misused idea, “the separation of church and state.”
American Constitutional Law: Essays, Cases, and Comparative Notes, 3rd ed.

Donald P. Kommers

American Constitutional Law: Essays, Cases, and Comparative Notes is a unique casebook that encourages citizens and students of the Constitution to think critically about the fundamental principles and policies of the American constitutional order. In addition to its distinguished authorship, the book has two prominent features that set it apart from other books in the field: an emphasis on the social, political, and moral theory that provides meaning to constitutional law and interpretation, and a comparative perspective that situates the American experience within a world context that serves as an invaluable prism through which to illuminate the special features of our own constitutional order. While the focus of the book is entirely on American constitutional law, the book asks students to consider what, if anything, is unique in American constitutional life and what we share with other constitutional democracies. Each chapter is preceded by an introductory essay that highlights these major themes and also situates the cases in their proper historical and political contexts. This new edition offers updated and expanded treatment of a number of important and timely topics including, the death penalty, privacy, affirmative action, and school segregation
Law's Environment: How the Law Shapes the Places We Live

John Copeland Nagle

John Copeland Nagle shows how our reliance on environmental law affects the natural environment through an examination of five diverse places in the American landscape: Alaska's Adak Island; the Susquehanna River; Colton in California’s Inland Empire; Theodore Roosevelt National Park in the badlands of North Dakota; and Alamogordo in New Mexico. Nagle asks why some places are preserved by the law while others are not, and he finds that environmental laws often have unexpected results while other laws have surprising effects on the environment. Nagle argues that sound environmental policy requires better coordination among the many laws, regulations, and social norms that determine the values and uses of our scarce lands and waters.
The International Legal System: Documentary Supplement

Mary Ellen O'Connell, Jonathan I. Charney, and Donald K. Anton

Documentary Supplement to the International Legal System contains most of the multilateral conventions and United Nations declarations, resolutions, etc. that comprise the modern body of "international legislation" in the general fields of public international law, including international criminal law, and international organizations. The collection could be used as an adjunct to any course or seminar in those fields even if not used in conjunction with the basic casebook.
The International Legal System: Cases and Materials, 6th ed.

Mary Ellen O'Connell, Richard F. Scott, and Naomi Roht-Arriaza
Modern Complex Litigation

Jay Tidmarsh and Roger H. Trangsrud

Modern Complex Litigation is the successor to Complex Litigation and the Adversary System, which was published in 1998. Due to the many developments in this field, the authors have reorganized and completely rewritten the text. Most of the principal cases used in the new edition have been decided since 1998, and many of the notes discuss cases, literature, and developments that have arisen in the past decade. In the interest of creating an accessible, student-friendly text, the book has been substantially shortened through the careful editing of cases and the use of short, informative notes. At the same time, the casebook still attempts to achieve the prior casebook's comprehensive survey of the field. After an introductory chapter, the casebook examines issues regarding the structure of the lawsuit and the aggregation of claims (such as joinder, preclusion, MDL transfer, class actions, and jurisdiction), and then addresses issues that arise during pretrial, trial, a
The Future of Investment Arbitration

Roger P. Alford and Catherine Rogers

Investment arbitration is at the cutting edge of international law and dispute resolution, and is predicted to be a major factor in the development of the global economic system in years to come. This one-volume monograph contains contributions from leading experts on a wide range of topics of both theoretical importance and practical implication that will affect the future of investment arbitration. The highly innovative chapters combine to form a constructive and valuable discussion for all in the arbitration field. The contributors, chosen to represent the full spectrum of perspectives, are leading arbitration experts from all over the world, including ICSID insiders, US government officials, UNCTAD research personnel, seasoned investment arbitrators and counsel, and renowned legal scholars.

The book is divided into three themes, with the first centering on the adequacy of UNCITRAL and ICSID arbitration rules, with particular attention to recent and proposed changes. The second theme focuses on the future of bilateral investment treaties, discussing trends in the interpretation of treaty provisions and the debate concerning the efficacy of the treaties in benefiting developing countries. The third theme revolves around the public function of investment arbitration decisions, including the use of arbitration to resolve disputes between sovereigns and the arbitrators' role as a guardian of international public policy.

The Future of Investment Arbitration is unique in its outstanding range of topics and the expertise of the contributors. It previews and guides future directions in the field, as well as discussing the larger policy implications of specific rules. It includes cutting-edge analysis of empirical research regarding BITS that is essential to evaluating many assumptions about investment law and arbitration. Finally, the book takes a broad perspective, examining the rules discussed within the larger structural context of investment arbitration, and drawing investment arbitration into the wider setting of international law and corporate governance.
Studies in American Tort Law, 4th ed.

Alan Gunn and Vincent R. Johnson

A careful mix of law, policy, ethics, and economics, Studies in American Tort Law is designed for first-year torts courses. Recognizing that torts is a prime battleground for social policy, this book seeks to reflect not only the current rules on injury compensation, but also the policy choices underlying those rules. Within a clear, doctrinal framework, a range of views is presented, reflecting dominant themes in tort law. Students are introduced to, but not overwhelmed with, law and economics. Economic analysis is employed when particularly useful (e.g., in connection with the negligence balancing test, strict liability, and calculation of damages). The law-and-economics notes can be used as a starting point for classroom discussion, or they can be allowed to stand on their own, without need for elaboration. The fourth ed. includes: * Comprehensive citations to the Restatement, Third, of Torts * The latest Supreme Court precedent on punitive damages and preemption * Readable statutory excerpts reflecting new legislative developments * Careful attention to ethical issues in the practice of law * Scores of citations to new court decisions * Several new principal cases. The fourth ed. is completely up-to-date to 2009, including a rich selection of materials reflecting the abundance of important recent developments in tort law. A comprehensive teacher's manual updated for the fourth ed., Teaching Torts, will be available. Mastering Torts: A Student's Guide to the Law of Torts (4th ed.), a short narrative text which parallels the casebook, assists students to fully understand this area of law
Criminal and Forensic Evidence: Cases, Materials, Problems, 3rd ed.

Jimmy Gurule and Robert J. Goodwin

This unique casebook adopts a modern, comprehensive approach to the study of evidence issues that arise in the context of criminal trial litigation. It covers evidentiary issues associated with the admission of forensic evidence, including expert testimony, as well as traditional evidence issues, such as evidence of prior bad acts offered for purposes other than to prove propensity, and evidence of a rape victim's prior sexual behavior. The materials are presented in two parts that allow for a Criminal Evidence course focused solely on forensic science, solely on traditional criminal evidentiary issues, or a combination of both topics.

The third edition provides students the most current and comprehensive examination of the Supreme Court's Sixth Amendment Confrontation Clause jurisprudence emanating from its recent decisions in Crawford v. Washington, Davis v. Washington, Giles v. California, and Melendez-Diaz v. Massachusetts. The new edition includes an extensive analysis of how federal and state courts post-Crawford have applied the Supreme Court's "testimonial" evidence and "primary purpose" tests for determining whether the admission of hearsay statements violates the Sixth Amendment right of confrontation
International Law and the Use of Force: Cases and Materials, 2d ed.

Mary Ellen O'Connell

This casebook may get more attention today than ever before in its history. From the Russian invasion of Georgia to the on-going detentions at Guantanamo Bay, the use of suicide bombs, to the workings of the United Nations Security Council in a crisis like Darfur, some of the most pressing legal issues of the day are found in this branch of international law. The book: Brings together cases and materials on both the law governing the resort to armed force (jus ad bellum) and the law governing the conduct of force (jus in bello) Provides a dynamic introduction for students, scholars, and practitioners. In addition to adding important new cases from the International Court of Justice, the United States Supreme Court, Israeli High Court of Justice, and others, the second edition adds a completely new chapter on prohibited weapons that begins with nuclear weapons and ends with suicide bombs.
Lawyers, Clients, and Moral Responsibility, 2nd ed.

Thomas L. Shaffer and Robert F. Cochran Jr.

This edition explores the place of moral and social values in the law office with the use of engaging stories, dialogues, and discussion. The book presents a practical way for lawyers to raise and discuss moral issues with clients. It will serve as an engaging supplement to professional responsibility, client counseling, and legal clinic courses. This edition adds substantial discussion of the place of moral discourse within law firms and corporations, ways to engage the powerless client in moral discourse, and the place of social justice in client counseling.
Appellate Review of Trial Court Decisions

J. Eric Smithburn

Understanding the different standards of review is necessary to the lawyer's informed reading of the appellate opinion. Further, the lawyer should use standard of review to discuss with the client the nature of the trial court's decision and the likelihood of success on review. If the client understands the difference between questions of law, which are reviewed de novo, and discretionary decisions, which are generally deferred to unless unreasonable, he or she will form realistic expectations about the trial and whether to consider an appeal. This casebook discusses the role of appellate courts and the history of appellate review and presents an overview of the concepts of scope of review and standard of review. It is organized into chapters on the different standards of review and includes notes and questions. The book is adaptable to a lecture-discussion format or as a classroom adjunct to a seminar-research paper arrangement.
Davies on contract, 10th ed.

Geoffrey J. Bennett and Robert Uppex

'Davies on Contract' introduces contract law, breaking the subject down into its component parts and providing an explanation of each area. This edition has been extensively rewritten and restructured to reflect the changes in the way that contract law is presently taught.

CONTENTS:
- Making the agreement
- What is within the agreement
- Defects in the agreement
- Who is within the agreement
- Ending the agreement
Comparative Legal Traditions in a Nutshell, 3rd ed.

Paolo G. Carozza, Mary Ann Glendon, and Colin B. Picker

An introduction to comparative law written from the American lawyer’s viewpoint rather than that of the European civil law lawyer. This expert discussion concentrates on the three major legal traditions of the West: civil, common, and socialist. Subjects covered include legal structures in civil law nations; legal actors in civil law tradition; procedure; substantive law; sources of law; judicial process; and rules. Also contains chapters on the European Union and the European human rights system.
Congress & Sports Agents: A Legislative History of the Sports Agent Responsibility and Trust Act

Edmund P. Edmonds, William H. Manz, and Thomas J. Kettleson.

Although a majority of individual states have adopted legislation directed toward the conduct of sports agents, the federal government found it necessary to enact Public Law 108-304, the Sports Agent Responsibility and Trust Act (SPARTA). Congress has recognized that many acts of sports agents go unpunished because of disparate, ineffective, or in some cases, a complete absence of state laws.

This volume offers readers the legislative history of SPARTA, including copies of the law, reports, hearings, and related bills. An additional feature of the set is an appendix containing state legislation in this area. The appendix includes the language from each specific state that enacted the uniform act while also including those acts from legislatures who charted their own course.
Unfunding Terror: The Legal Response to the Financing of Global Terrorism

Jimmy Gurule

The September 11, 2001 terrorist attacks that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda was operating on an annual budget of between $30 and $50 million. However, despite the obvious fact that terrorists need money to terrorize, preventing the financing of terrorism was not a priority for the United States or the international community prior to 9/11. Jimmy Gurule, former Under Secretary for Enforcement in the US Department of the Treasury, provides the first book-length, comprehensive analysis of the legal regime that evolved following the terrorist attacks. The book begins with a discussion of how shutting down the pipelines of funding is as important as dismantling the terrorist cells themselves.Next, the book covers the various means and methods used by terrorist groups to raise money, and examines how money is transferred globally to finance their lethal activities. The principal components of the legal strategy to disrupt the financing of terrorism are then discussed and evaluated. Unfortunately, the author concludes that the legal regime has met with mixed results, and finds that the sense of urgency to deprive terrorists of funding that existed following 9/11 has since dissipated. As a result, international efforts to freeze terrorist assets have dramatically declined. Moreover, the US Department of Justice has suffered several embarrassing and disappointing legal defeats in prosecuting major terrorist financiers.The author therefore provides numerous recommendations to Congress, the Executive Branch, and the UN Security Council for strengthening the legal regime to deny terrorists the money needed to wage global jihad, acquire weapons of mass destruction, and launch another terrorist attack on the scale of 9/11. "Unfunding Terror" fills an important gap in the literature and will be essential reading for counter-terrorism experts, law enforcement and national security officials, policy makers, academics and all those interested in the global war on terror.
The Practice and Policy of Environmental Law, 2nd ed.

John Copeland Nagle, James Salzman, and J. B. Ruhl

More than any other environmental law survey casebook, this book conveys the substantive material in real-world practice contexts, with significant chapters on permitting and rulemaking, enforcement, compliance counseling, business transactions, and private litigation. Changes made for the second edition provide a more streamlined and coordinated presentation of the major environmental laws and programs.
The Power & Purpose of International Law: Insights from the Theory & Practice of Enforcement

Mary Ellen O'Connell

The world is poised for another important transition. The United States is dealing with the impact of the Afghan and Iraq wars, the use of torture and secret detention, Guantanamo, climate change, nuclear proliferation, weakened international institutions, and other issues related directly or indirectly to international law. The world needs an accurate account of the important role of international law and The Power and Purpose of International Law seeks to provide it.

Mary Ellen O'Connell explains the purpose of international law and the power it has to achieve that purpose. International law supports order in the world and the attainment of humanity's fundamental goals of peace, prosperity, respect for human rights, and protection of the natural environment. These goals can best be realized through international law, which uniquely has the capacity to bind even a superpower of the world. By exploring the roots and history of international law, and by looking at specific events in the history of international law, this book demonstrates the why and the how of international law and its enforcement. It directly confronts the notion that international law is "powerless" and that working within the framework of international law is useless or counter-productive. As the world moves forward, it is critical that both leaders and their citizens understand the true power and purpose of international law and this book creates a valuable resource for them to aid their understanding. It uses a clear, compelling style to convey topical, informative and cutting-edge information to the reader.
Christians in the American Empire: Faith & Citizenship in the New World Order

Vincent D. Rougeau

What does it mean to be a Christian citizen of the United States today? This book challenges the argument that the United States is a Christian nation, and that the American founding and the American Constitution can be linked to a Christian understanding of the state and society. Vincent Rougeau argues that the United States has become an economic empire of consumer citizens, led by elites who seek to secure American political and economic dominance around the world. Freedom and democracy for the oppressed are the public themes put forward to justify this dominance, but the driving force behind American hegemony is the need to sustain economic growth and maintain social peace in the United States.

This state of affairs raises important questions for Christians. In recent times, religious voices in American politics have taken on a moralistic stridency. Individual issues like abortion and same-sex marriage have been used to "guilt" many Christians into voting Republican or to discourage them from voting at all. Using Catholic social teaching as a point of departure, Rougeau argues that conservative American politics is driven by views of the individual and the state that are inconsistent with mainstream Catholic social thought. Without thinking more broadly about their religious traditions and how those traditions should inform their engagement with the modern world, it is unwise for Christians to think that pressing single issues is an appropriate way to actualize their faith commitments in the public realm.

Rougeau offers concerned Christians new tools for a critical assessment of legal, political and social questions. He proceeds from the fundamental Christian premise of the God-given dignity of the human person, a dignity that can only be realized fully in community with others. This means that the Christian cannot simply focus on individual empowerment as 'freedom' but must also seek to nurture community participation and solidarity for all citizens. Rougeau demonstrates what happens when these ideas are applied to a variety of specific contemporary issues involving the family, economics, and race. He concludes by offering a new model of public engagement for Christians in the American Empire.
The Story of Hansberry: The Foundation for Modern Class Actions

Jay Tidmarsh

Book Chapter

The Story of Hansberry: The Foundation for Modern Class Actions, in Civil Procedure Stories, 2d 217 (Kevin M Clermont ed., 2008).

Hansberry is a story of racism; of neutral procedural principles developed to avoid both an untenable substantive outcome and a direct examination of the race issue; and ultimately of the rise of the most important, and most controversial, of all modern procedural devices—the class action.

The book is a collaborative effort by fourteen law-school professors to provide a deeper understanding of the great civil procedure cases. The professors each wrote a short chapter on one of the cases, retelling the cases in their own voice and by their own method. Each chapter has a fairly consistent structure, with separate sections on: social and legal background of the case; factual background of the case; lower court proceedings in the case; final appellate disposition, including issues, decisions, reasons, and separate opinions; factual postscript to the case; immediate impact of the case on the development of the law (why the case is famous and when it became so); and continuing importance of the case today (why it is still a leading case).

This book is a collaborative effort by fourteen law-school professors to provide a deeper understanding of the great civil procedure cases. The professors each wrote a short chapter on one of the cases, retelling the cases in their own voice and by their own method. Each chapter has a fairly consistent structure, with separate sections on: social and legal background of the case; factual background of the case; lower court proceedings in the case; final appellate disposition, including issues, decisions, reasons, and separate opinions; factual postscript to the case; immediate impact of the case on the development of the law (why the case is famous and when it became so); and continuing importance of the case today (why it is still a leading case).