Category Archives: Law

Best Disclaimer Ever?

The TV version of this otherwise endless and pointless commercial for KFC contains what may be the best disclaimer I have ever witnessed in the wild:

Professional. Do not attempt to eat chicken while doing a backflip on a motorcycle. You may choke.

Imagining that some lawyer got paid a lot of money for writing that just makes it funnier.

Posted in Tort | 2 Comments

Rental Cars as a Civilization Advance (Herein Also of the Valuation of Locks)

The ubiquity of rental cars are one of the great advances of human civilization. Think about it for a moment: you sign your name (and if you’re a member of a rental car company’s membership program, not even that) and you are given the keys to a vehicle that costs usually $20,000 or more. No questions asked. That’s a real hallmark of trust in markets and highly developed institutions.

via View from the Wing

I’ve wondered sometimes how we should treat the costs of locks.

On the one hand, you buy a lock, that is counted as part of GDP. Well-used locks genuinely make you safer; they add to your welfare function. A world in which you are allowed to have a lock, and can afford locks when you need them, is for you a better world than one in which you are not allowed locks, or they are priced out of your reach.

On the other hand, a world in which you need a lock is not as good a world in which, all other things being equal, you do not need a lock. If you could rely on something free — magic, social conditioning, hardwired biological morality — to secure your places and possessions, then you could save all that lock money and spend it on something else, raising your utility even further. So in this view, each expenditure on a deadbolt is a deadweight loss, a sign of a social and economic failure, a waste of resources that could more profitably be employed for something else.

Posted in Econ & Money, Law | 11 Comments

Palsgraf, Circa 1933

Torts mavens will like this posting about the immediate reception of Palsgraf v. Long Island R. Co., a Cardozo decision that is arguably the most famous US tort case about causation.

I happen to hate Palsgraf for all sorts of reasons, not least what I consider the opinion’s dishonesty, and try to teach it as fast as I reasonably can. Even so, or perhaps particularly so, it’s fun to read the account of what a contemporary hornbook, James M. Henderson’s Questions and Answers with Problems and Illustrative Matter on the Law of Torts, Based on all the Standard Text and Case Books made of it back in 1933.

This is an early effort from a promising legal history blog,, one that seems to offer just about the right mix of history, whimsey, and obscurantism.

Posted in Blogs, Tort | 1 Comment

Miami Law’s World-Class International Arbitration Law Program

I don’t think many people yet grasp just how good the University of Miami’s international arbitration law program is, both at the JD and LL.M level.

Consider that the lead international arbitration professor on our faculty, Jan Paulsson, was just rated the #2 international arbitrator in the world based on a peer reputation survey.

And if that wasn’t enough, the #1 international arbitrator in the world in that same survey, Albert Jan van den Berg, visits here every year as a regular Visiting International Professor. And the other regular and visiting professors in the program are quite eminent too.

Read more puffing here.

Admittedly, international arbitration is a relatively small field, which it can be tough to break in to. But it is growing. And we’re really, really good at it.

Posted in Arbitration Law, Law School | 2 Comments

A ‘Reform’ Much Worse than the Problem

I’ve signed a law professors’ letter opposing HR 3010, the so-called “Regulatory Accountability Act of 2011.” Even by DC standards, this bill is unusually bad. The following summary, from Regulatory reform good for multinationals, yet bad for you, isn’t actually as alarmist as it sounds:

However, a thorough reading of the RAA leads to three conclusions. First, the bill will likely to dramatically drive up the cost of almost every rule-making process and budget of a federal agency. Second, federally elected officials will be stripped of their ability to responsibly lead our country. And third, the RAA is a highway to never-ending lawsuits by special interests against the federal government.

The RAA is designed to micromanage every federal agency in its efforts to create rules necessary to carry out legislation passed by Congress.

By doing so, it turns over 60 years of effective regulation promulgation under the Administration Procedures Act into a protracted process that will stretch the time needed for rule-making into decades. Federal agency budgets will need to be expanded by hundreds of billions of dollars to comply with the RAA and perform their usual functions of protecting the public and small businesses from unsafe products and practices.

… the legislation is a corporate lobbyist dream. It appears to have been written by corporate attorneys for corporate attorneys

Posted in Administrative Law | Leave a comment

Jan Paulsson Event This Afternoon

We're doing a big bash at 4:30pm this afternoon in the Lowe Art museum to celebrate Prof. Jan Paulsson's taking up of the Michael Klein chair. Jan is going to give a lecture on “Moral Hazard and Dispute Resolution” and then there will be a nice reception.

As one of the people who helped set up the Arbitration Center, and an active participant in recruiting Jan — who is a tremendous asset to the law school — I'm happy about this.

jpaulsson2.JPGThe University of Miami School of Law will host a celebration in honor of the appointment of Jan Paulsson as the Michael Klein Distinguished Scholar Chair. Paulsson, who joined the law school in the academic year 2009-10, is head of the public international law and international arbitration groups at Freshfields Bruckhaus Deringer, and has had his professional base in Paris for 30 years. He is currently the President of the World Bank Administrative Tribunal and the London Court of International Arbitration, and he was recently elected president of the International Council for Commercial Arbitration (ICCA) and vice president of the International Chamber of Commerce International Court of Arbitration.

The event will take place Thursday, April 29, 2010, at the UM Lowe Art Museum. A dedication ceremony will take place at 4:30 p.m. with a lecture followed by a reception.

In his post, Paulsson heads a newly established concentration in international arbitration at the University of Miami School of Law.

“Jan Paulsson is one of the world’s leading international arbitrators, and having him at Miami reflects our commitment to being the preeminent academic center for the subject,” said Dean Patricia D. White.

Paulsson has served as arbitrator in over 500 arbitrations in Europe, Asia, the United States and Africa. He has also appeared before a great variety of international tribunals, including the International Court of Justice and the International Center for the Settlement of Investment Disputes.

Paulsson holds an A.B. from Harvard University, a J.D. from Yale Law School and a Diplome d’études superieures spécialisées from the University of Paris. His recent books include Denial of Justice in International Arbitration, published by Cambridge University Press, and The Idea of Arbitration, to be published by Oxford University Press.

Michael R. Klein, JD ’66, established the Michael Klein Distinguished Scholar Chair in 2005. He is Chairman of the Board of CoStar Group, Inc., a public company he co-founded that provides 24/7 internet access to information about 70 billion square feet of commercial, retail, industrial and multi-family structures. Klein, who is involved in a wide array of organizations and activities, serves on the School of Law’s Visiting Committee and is a former trustee of the university. He was named as the first Alumnus in Residence by the UM Alumni Association and has been honored as the Distinguished Alumni Lecturer.

Posted in Arbitration Law, U.Miami | Leave a comment

This Looks Good

Rachel E. Barkow, Institutional Design And The Policing Of Prosecutors: Lessons From Administrative Law, 61 Stan. L. Rev. 869 (2009).

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor’s office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors’ offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors’ combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Administrative law values are not inevitably good, but they are often good.

Posted in Administrative Law, Law: Criminal Law | Leave a comment