ON THE RELEVANCE OF ECONOMIC EFFICIENCY CONCLUSIONS
Richard S. Markovits
Economists define the concept “an increase in economic efficiency” in three different ways. First, they sometimes define the concept in a Pareto-superior sense. A choice is said to be Pareto-superior if and only if it makes somebody better off while making nobody worse off— stated differently, if and only if it moves society to a so-called Pareto-superior position. However, because no (or virtually no) government choice is Pareto-superior, economists almost never employ this definition in practice. Second, economists sometimes employ a “potentially Pareto-superior” definition of “increase in economic-efficiency.” A choice increases economic efficiency under this definition if its combination with a transaction-costless, appropriate resource transfer would bring the economy to a Pareto-superior position. Third, and most often, economists employ what I call the “monetized” definition of “increase in economic efficiency.” In the monetized sense of this concept, a choice increases economic efficiency if it gives its beneficiaries the equivalent of more dollars than it takes away from its victims. Indeed, virtually all applied microeconomic policy and law-and-economics analyses that focus on economic efficiency implicitly adopt this monetized definition of “increase in economic-efficiency.”
THE WHITE PRIMARY RULINGS: A CASE STUDY IN THE CONSEQUENCES OF SUPREME COURT DECISIONMAKING
Michael J. Klarman
Political scientists and legal scholars have written a good deal in recent years on the consequences of Supreme Court decisions. Much of this scholarship has been skeptical of the Court’s capacity to produce significant social change. Most notably, Professor Gerald N. Rosenberg has declared the notion that courts can reform society a “hollow hope.” Rosenberg shows that Brown v. Board of Education produced very little school desegregation until Congress passed landmark civil rights legislation to implement the Court’s ruling. He also makes a strong case that Brown played a less instrumental role in the 1960s civil rights movement than is commonly believed. Similarly, my own research has found that the Supreme Court’s first major criminal procedure decisions, which disproportionately involved Southern blacks who had suffered egregious mistreatment from the Jim Crow criminal justice system, had almost no impact on reforming that system. Southern blacks continued to be almost universally excluded from juries, beaten into confessing crimes they may or may not have committed, and convicted of capital offenses after sham trials in which generally apathetic court-appointed lawyers simply went through the motions of providing a defense.
REVISIONS IN NEED OF REVISING: THE UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT
Adam J. Hirsch
In the usual course of events, most persons are inclined to accept any bequests of property that a testator has the good grace to leave them. However nobler it is to give than to receive, receiving also has its charms. Still, some beneficiaries do find occasion to refuse, or “disclaim,” an inheritance. Our law has long regulated a beneficiary’s power to do so.
THE NEW DEAL ORIGINS OF AMERICAN LEGAL PLURALISM
Political, cultural, and religious groups around the world have sought in recent decades to exercise their rights to self-determination. Examples include indigenous peoples in Australia and Canada, Native Americans, ethnic groups in Eastern Europe, the Amish community in Pennsylvania, and the Orthodox Jewish community of Kiryas Joel. Responding to these efforts, legal scholars and policymakers are today attempting to develop legal mechanisms that would accommodate the unique interests of particular groups, while also mediating and settling potential conflicts and tensions between individuals, groups, and peoples. In this Article, I seek to add a historical dimension to these endeavors by examining early twentieth-century theories of pluralism that are rich, complex, and highly relevant to these contemporary discussions of group rights, but that thus far have been neglected by political scientists and legal scholars.
Dalia Tsuk’s article substantially enriches our understanding of the multiple forms and complexities of pluralism. She achieves this admirably through her focus on Felix Solomon Cohen and the Indian New Deal. Her cogent elaboration of Cohen’s changing notions underscores how entangled ideas about pluralism remain today. Succinctly placing Cohen’s evolving ideas within the context of his own times and his personal life, Tsuk wisely reminds us of how scholars of the first half of the last century both anticipated and could not resolve the most basic issues within the continuing debate about pluralism.
NOTHING LEFT OF INDOPCO: LET’S KEEP IT THAT WAY!
In 1992, the United States Supreme Court seemingly resolved the contentious issue of whether a target corporation could currently deduct the investment banking fees and costs it incurred when a friendly buyer acquired it. In INDOPCO, Inc. v. Commissioner, the Court clearly held that target corporations cannot deduct current investment banking fees and costs when they obtain only future benefits in a merger. After INDOPCO, taxpayers began to worry that the Internal Revenue Service (IRS) would require them to capitalize otherwise currently deductible business expenses simply because those expenses yielded some future benefit.
EQUITABLE REPUDIATION: TOWARD A DOCTRINE OF FALLIBLE PERFECTION IN STATUTORY INTERPRETATION
Aristotle expressed this notion more than 2300 years ago. It has been echoed by Aquinas, Coke, Blackstone, and Hamilton. Yet it seems lost today in the debate over the proper role of courts in interpreting statutes. Rather, the modern debate largely assumes that judges are not to depart from statutory meaning, however that meaning may be divined. Implicit in this assumption is that judges are mere congressional agents or messengers. Born of it is the myth that objective interpretation of statutes is possible. And lost in the process is the impulse to do justice.