Assessing infrequent large earthquakes using geomorphology and geodesy in the Malawi Rift

In regions with large, mature fault systems, a characteristic earthquake model may be more appropriate for modelling earthquake occurrence than extrapolating from a short history of small, instrumentally observed earthquakes using the Gutenberg–Richter scaling law. We illustrate how the geomorphology and geodesy of the Malawi Rift, a region with large seismogenic thicknesses, long fault scarps, and slow strain rates, can be used to assess hazard probability levels for large infrequent earthquakes. We estimate potential earthquake size using fault length and recurrence intervals from plate motion velocities and generate a synthetic catalogue of events. Since it is not possible to determine from the geomorphological information if a future rupture will be continuous (7.4 ≤ M W ≤ 8.3 with recurrence intervals of 1,000–4,300 years) or segmented (6.7 ≤ M W ≤ 7.7 with 300–1,900 years), we consider both alternatives separately and also produce a mixed catalogue. We carry out a probabilistic seismic hazard assessment to produce regional- and site-specific hazard estimates. At all return periods and vibration periods, inclusion of fault-derived parameters increases the predicted spectral acceleration above the level predicted from the instrumental catalogue alone, with the most significant changes being in close proximity to the fault systems and the effect being more significant at longer vibration periods. Importantly, the results indicate that standard probabilistic seismic hazard analysis (PSHA) methods using short instrumental records alone tend to underestimate the seismic hazard, especially for the most damaging, extreme magnitude events. For many developing countries in Africa and elsewhere, which are experiencing rapid economic growth and urbanisation, seismic hazard assessments incorporating characteristic earthquake models are critical

On Optimality of Stepdown and Stepup Multiple Test Procedures

Consider the multiple testing problem of testing k null hypotheses, where the unknown family of distributions is assumed to satisfy a certain monotonicity assumption. Attention is restricted to procedures that control the familywise error rate in the strong sense and which satisfy a monotonicity condition. Under these assumptions, we prove certain maximin optimality results for some well-known stepdown and stepup procedures.Comment: Published at http://dx.doi.org/10.1214/009053605000000066 in the Annals of Statistics (http://www.imstat.org/aos/) by the Institute of Mathematical Statistics (http://www.imstat.org

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society. Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation. This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty. This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society. Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation. This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty. The article begins with a dystopia, narrating a future in which criminal and immigration law have completely merged, and membership theory has resulted in extreme divisions in our society between insiders and outsiders – between the included and the alienated. The rest of the article describes the seeds of that future in the past and present. Part II describes the present confluence of immigration and criminal law. Part III sets out the role of membership theory in those areas in excluding noncitizens and ex-offenders from society. It details the role of sovereign power in drawing and enforcing those lines of exclusion. The article concludes by describing the potential consequences of the convergence of these two areas and the use of membership theory to justify decisions to exclude

“Why Infer”? What the New Institutional Economics Has to Say About Law-Supplied Default Rules

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law-supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative framework for assessing the costs and benefits of legal interventions, they are incompletely justified. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve the fundamental issues of legal intervention. The Article uses that framework to critique the hypothetical bargain and Ayres/Gertner penalty default rule approaches to law-supplied terms. Finally, this Article illustrates the benefits of the comparative framework for resolving questions of law-supplied rules in the pre-contractual negotiation and subcontractor bidding contexts

Taxonomy for Justifying Legal Intervention In An Imperfect World: What To Do When Parties Have Not Achieved Bargains Or Have Drafted Incomplete Contracts

This paper addresses the fundamental methodological issue of when courts should intervene in incomplete contracts by interpreting them, filling in gaps and imposing liability on parties who have not yet reached a bargain. It addresses whether such intervention poses a threat to the parties\u27 freedom from contract, the subject of the Wisconsin Symposium on Freedom from Contract. It uses an instrumental approach to determine the circumstances in which courts can outperform parties in improving welfare by intervention. It assesses the two dominant strands of scholarship for addressing the legal intervention question. One strand emphasizes the costs of parties achieving complete contracts and justified legal intervention as a means to reduce such transaction costs. The other strand of scholarship, represented by the new formalists, emphasizes the difficulty of supplying terms that depend on unverifiable or unobservable information. While both strands of the literature contain valid insights, this paper suggests that neither strand of scholarship provides an analysis of how intervention would advance or hinder the parties\u27 welfare when certain factors such as uncertainty, sunk costs and opportunism are taken into account. Therefore, they cannot assess whether intervention in the form of a precontractual liability rule, with its apparent reduction in freedom from contract, advances welfare or not. This paper develops a taxonomy for legal intervention that focuses on the structural barriers that interfere with the parties\u27 ability to solve a key problem in contracting: the tendency of parties to behave opportunistically. To date, the full implications of this behavioral uncertainty have not been sufficiently incorporated into models assessing legal intervention nor into models demarcating the appropriate boundaries realm for freedom from contract. This paper suggests that legal intervention may be called for when sunk costs and uncertainty about the likelihood of opportunistic behavior are present and the parties\u27 costs of dealing with the recurring problem on their own are most costly than judicial intervention. It specifically explores the taxonomy of legal intervention in the specific context of precontractual liability and the implied limits on revocation in Drennan and unilateral contracts

Context Matters - What Lawyers About Choice of Law in Merger Agreements

Finding out the truth about a matter can proceed in many different ways. Neoclassical law and economists would construct models built on certain assumptions. The empiricists and contextualists would collect data about the matter in the inductive not deductive sense. The choice of law in merger agreements presents an opportunity to study a contractual provision in the context of merger deals to see what we can learn from studying the choices in detail. There are a variety of ways to approach these provisions in merger agreements. Can we learn anything about how choices are made in the drafting of these contracts that will shed light on some of the larger issues in contract and in law practice? Will a study of the process of choice of law in merger agreements highlight the difficulties that courts face when they try to interpret the meaning behind any provision in a contract when the provision was negotiated between commercial firms with assistance from counsel? If a provision is included by a lawyer and the lawyer, not the client, makes the choice of law decision, what implications does that have for a court trying to ascertain the party’s intent on other issues not directly governed by the choice of law provisions such as what interpretive approach to take to the contract? Is there such a thing as a party’s intent when the party/firm played little role in choosing the provision? Choice of law provisions have generated great scholarly interest. Some scholars have used data to study whether there has been a shift in the preferred choice of law in merger agreements. To test a hypothesis that parties were fleeing to New York for their choice of law, Professors Eisenberg and Miller studied a group of merger agreements from a seven month period in 2002 and found that there is a flight from Delaware to New York for the parties’ choice of law in merger agreements. Other scholars relied on a later Eisenberg and Miller study of a broader array of contracts documenting a flight to New York to hypothesize that companies specify New York because of its substantively more formalistic contract law. In that case neoclassical economics scholars relied on empirical evidence of a flight to support the new formalist view that courts should reject contextualism since the parties’ flight to New York law demonstrates a formalistic preference. Their hypothesis built on earlier scholarship using models to show that utility maximizing commercial firms would prefer formalistic contract law and then supposed that the flight to New York law was related to that preference. The Scott and Kraus hypothesis is that parties use strategic thinking in choosing the law to govern and agreement to protect planning with respect to all of the terms in the contract. The choice of law is made to ensure that all of the contract terms which have been carefully negotiated and chosen ex ante are given their plan, ordinary meaning. This hypothesis rests on a view that lawyers carefully construct contracts and wish to guard against courts using their discretion to interpret contracts or fill in terms for the parties. A rival hypothesis of contract drafting in Contract theory is one in which clients and lawyers do not pay much attention to the terms of the contract ex ante. Instead, lawyers simply copy language from a prior agreement without much thought. The decision to copy prior language reflexively is motivated by the lawyer’s disinclination to spend time or hours on a provision or term that will be difficult to bill to the client. The theory is that the contract will not pay for bespoke drafting unless it is clear that the costs of the standard language pose so many risks as to outweigh the drafting costs. Another hypothesis fell into neither the Kraus/Scott model nor the reflexive copying of prior language is the one I began my research with. That hypothesis, was that the particular choice of law provision is made by lawyers, not because of any substantive aspects of contract law in a particular jurisdiction, but because of internal professional concerns of the lawyers. I surmised that because lawyers want to ensure that they are knowledgeable with the law that is chosen, and want to avoid any liability for malpractice that might come with specifying the law of a jurisdiction with which they are unfamiliar, lawyers would specify a choice of law with which they or a member of their firm are familiar. Initially, I thought that the lawyer would therefore likely choose or advise a client to only choose the law of a jurisdiction in which the lawyer or a member of her firm were licensed. However, my data demonstrated that being comfortable with the law of a jurisdiction, in the sense of the law or the state’s courts being predictable, meant lawyers seemed comfortable with the law of both Delaware and New York and that they could be comfortable with the contract law of another jurisdiction without necessarily being licensed to practice law in it unless the choice of law were for Alabama or California which seem to be outlier jurisdictions. One lawyer explained that the basic choice of law came down to four options: the acquiring party’s primary executive office, the state of incorporation, New York law, and Delaware law. My own hypothesis of contract drafting (and lawyering) that I find validated in the study falls somewhat in the middle between the Kraus and Scott position of carefully tailored strategic choice of law provisions and the reflexive copying model. I posit that my survey shows that lawyers do spend some thought on the choice of law provision; it is not reflexively copied or ignored. This thought is evidenced by the fact that some lawyers will use different states’ governing law in different merger agreements. But there is not deep thought given to the matter in part because lawyers seem comfortable with a range of governing laws and seek to avoid only one or two jurisdictions. This hypothesis rejects the hypothesis that there is strategic thinking by lawyers who make the choice to strategically choose a formalist law to protect planning with respect to all of the terms in the contract. Lawyers making choice of law decisions in merger agreements do not seem to be strategic thinking in a broad ranging fashion about all aspects of the contract but in a narrow one (which sandbagging provision applies) or a non-strategic view in which most jurisdictions proposed by the parties would be appropriate and that would usually be New York or Delaware or the jurisdiction where one party is headquartered. A preference for choosing a “rational jurisprudence” would seem to suggest that lawyers would be happy with a state’s governing law if it were rational and not aberrant or irrational. Lawyer interviews suggest that either the choice is unimportant or is not so important as to be “deal breaker” and therefore not one that clients or lawyers would insist on. The lawyers’ answers suggesting that the volume of case law is very important in choice of law suggests a discomfort with jurisdictions that lack a rich case law of reported business cases and an unwillingness to face the lack of precedent in cases or first impression or lack of knowledge and expertise. That preference does not clearly indicate a strategic preference for formalism. The three most important findings of my lawyer study are 1. that there is no one overarching or predominant reason lawyers give for choosing the law of a particular jurisdiction to govern a merger agreement; 2. lawyers, not clients, make the choice of law decision; and 3. that the particular context matters in the choice of law decision. Another additional insight (though hard to quantify) is that some lawyers may not consider the choice of law important or spend much time on it. Instead, the choice of law provision is considered an ad hoc one that is not heavily negotiated ex ante. These observations on how a choice is made raise questions about how much a court can glean about the parties’ intentions from a single contractual provision agreed to by lawyers and their clients who face budget constraints on negotiating terms. These findings suggest that there may be a disjunction between academics and practitioners on the significance of the choice of law issue. They suggest that the choice of law decision is too variegated to support a singular reason for the choice, such as a drive toward formalism

Note, Antitrust Law – Municipal Immunity – Application of the State Action Doctrine to Municipalities - City of Lafayette v. Louisiana Power & Light Co.

This noted discusses City of Lafayette v. Louisiana Power & Light Co

Plain Meaning vs. Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule for Interpretation

The problem of contract interpretation presents courts with significant questions about the nature and methodology of judicial intervention into privately arranged affairs. The court often assumes an active role in interpreting the words of a written contract in part because words have more than one meaning or because a contract is incomplete. When a court chooses amongst variable meanings, or interprets contracts to craft limitations on parties\u27 behavior when express limits do not exist, its choice must be then justified using a framework explored in this essay. Traditionally, commentators have advocated one of two general approaches to supply the methodology to govern judicial choices of contract meaning. The first restricts interpretation to the words used in the contract and the other accepts extrinsic evidence about what one or both of the parties to the contract intended that the words would mean or objective evidence of the meaning supplied by context or evidence of how ordinary commercial parties in a trade used the term or behaved in the current contract. This essay argues that it is the wrong to think that courts must make a dichotomous choice always to prefer extrinsic evidence or always to exclude it. Sometimes the appropriate interpretive methodology should explicitly forego extrinsic evidence while at other times it should embrace extrinsic evidence. The choice between the two methodologies should depend upon an assessment in each case about which interpretive methodology is most likely to (1) curb opportunistic behavior; (2) implement the parties\u27 actual intentions, and (3) achieve these overall goals, in each case in a cost-effective way and thereby maximize gains from trade. The essay identifies a number of factors that may help to resolve which methodology will achieve those goals in different factual settings