Digital Commons Network^™

Biomedical Ethics And The Law: A Critical Perspective, Keith N. Hylton

Faculty Scholarship

Health law, a fast growing field of scholarship, appears to consist largely of two schools. One focuses on health care antitrust, taking as its fundamental premise the notion that health care markets should be distinguished from and treated differently than other markets. This premise underlying health care antitrust is based on a few recurring features of health care markets, such as informational asymmetry, that are taken as sufficient bases for treating them differently.¹ The other school of health law is biomedical ethics, which has taken on increasing importance in view of the many tradeoffs that arise when health care …

There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to …

Protecting Religion Through Statute: The Mixed Case Of The United States, Jay D. Wexler

Faculty Scholarship

Various legislatures of the United States and those of other countries with transitional legal systems have much to learn from U.S. Congress's mixed record of protecting religious freedom through statute. While legal systems and religious culture differ tremendously worldwide, some general lessons transcend these variances. In this context, the successes and failures of the Religious Freedom Restoration Act, or RFRA, (1993) and Title VII of the Civil Rights Act (1964) are analyzed. Five major conclusions are reached, which focus on the danger of ambiguity and the need for clarity and strictness in order to prove a religious protection act effective.

The 'Male Problematic' And The Problems Of Family Law: A Response To Don Browning's 'Critical Familism', Linda C. Mcclain

Faculty Scholarship

This essay explores the relationship between the male problematic and the problems of family law. The problem of fatherhood, or what religion scholar and marriage movement leader Don Browning calls the male problematic, is a central concern of that movement. The premise is that marriage addresses a core societal challenge - binding men to the mothers of the children they foster and securing men's paternal investment in those children. The essay responds to Browning's review (in 56 Emory Law Journal 1383 (2007)) of my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006), in which …

Unpacking Backdating: Economic Analysis And Observations On The Stock Option Scandal, David I. Walker

Faculty Scholarship

The corporate stock option backdating scandal has dominated business page headlines since the summer of 2006. The SEC has launched investigations of more than one hundred companies with respect to the timing and pricing of stock options granted during the boom years of the late 1990s and early 2000s, and the number of firms caught up in the scandal continues to increase. This Article contributes to our understanding of the backdating phenomenon by analyzing the economics of backdating and the characteristics of the firms under investigation. Its main points are the following: First, given the high volatilities of the stocks …

The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain

Faculty Scholarship

This chapter examines how the vision of the natural family articulated by several prominent conservativereligious organizations in the United States shapes their opposition to certain human rights instruments. TheUnited Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in internationalhuman rights formulations and to have generated a high degree of formal commitment by governments, as evidenced by its quick and virtually universal ratification. However, the United States stands nearly alone innot having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the …

"Respectful Consideration" After Sanchez-Llamas V. Oregon: Why The Supreme Court Owes More To The International Court Of Justice, Steven Arrigg Koh

Faculty Scholarship

This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default …

Consumer Law As Tax Alternative, Rory Van Loo

Faculty Scholarship

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws. Tax law dominates distributional conversations partly because legal rules are seen as less efficient and partly because consumer law research speaks to narrow and siloed contexts. Even millions of dollars in reduced credit card fees seem trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article is the first to synthesize the fragmented studies quantifying inefficiently higher consumer prices across diverse markets — called overcharge. These studies indicate that laws reducing overcharge could make a substantial reduction in inequality. Moreover, this …

Determining An Arbitrator's Jurisdiction: Timing And Finality In American Law, William W. Park

Faculty Scholarship

In arbitration law, few matters engender more stimulating debate than the interaction of arbitrators and judges with respect to jurisdictional determinations. When one side asserts that it never agreed to arbitrate, or contests the arbitrator’s substantive mission or procedural powers, someone must determine the existence, validity, and/or scope of the arbitration clause.

Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso

Faculty Scholarship

This Article tracks the ongoing adaptation of U.S. contract law to the 1990s’ contraction of the welfare state. Some courts strive to compensate for the shortage of welfare services and to pursue redistributive goals. This Article provides examples of this trend and then analyzes the non-linear relation between doctrines, judicial redistribution, and welfare politics in both case law and scholarship. Finally, this Article discusses the role of socially sensitive judicial discourse in light of contemporary welfare politics and explains its continuing importance.

Two Faces Of Progress: Fairness And Flexibility In Arbitral Procedure, William W. Park

Faculty Scholarship

Arranged in pairs, the biographies in Plutarch's Parallel Lives contrast great statesmen, orators and soldiers from the ancient Roman and Greek worlds.1 Cicero, the Roman orator, finds himself juxtaposed with his Greek counterpart, Demosthenes. The Roman general Caesar stands compared with the Hellenic military genius of Alexander. And so on.

Punitive Damages In The United States, Jack M. Beermann

Faculty Scholarship

his article is an attempt to acquaint the reader with contemporary legal issues surrounding punitive damages in the United States. Pursuant to U.S. federalism, most private law in the United States is state law and can vary significantly from state to state. Contract law, tort (injury) law, property law and criminal law are mainly state law. Many of these areas are governed largely by common law which means that there are no statutes, and courts make the law in the course of resolving individual legal controversies. It is the state common law of injury that allows punitive damages in the …

Foreword: The Politics Of Health Law: Any Tipping Points In View?, Frances H. Miller

Faculty Scholarship

Malcolm Gladwell explored the way certain ideas and behaviors can proliferate "just like viruses do" once they achieve a critical mass in The Tipping Point,' his best-seller about the sorts of widespread and rapidly adopted social phenomena he labels epidemics. Gladwell's subtitle, "How Little Things Can Make a Big Difference," indicates that he thinks it need not take much to get one of these social epidemics rolling. He does believe, however, that three factors are essential: getting "people with a particular and rare set of social gifts" involved,² packaging the ideas so they are "irresistible" under the circumstances, ^{3 …}

The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use"¹ and "The End of Friction,"² commentators argue about whether or not the copyright doctrine of fair use³ should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present …

The Balkanization Of Originalism, James E. Fleming

Faculty Scholarship

Are we all originalists now? If anything would prompt that question, it would be Ronald Dworkin and Jack Balkin dressing up their theories in the garb of originalism (or, at any rate, being interpreted as originalists). For they are exemplars of two bete noires of originalism as conventionally understood: namely, the moral reading of the Constitution, and pragmatic, living constitutionalism, respectively.' Yet in recent years Dworkin has been interpreted as an abstract originalist2 and Balkin has now embraced the method of text and principle, which he presents as a form of abstract originalism.'

Human Rights Outlaws: Nuremberg, Geneva, And The Global War On Terror, George J. Annas

Faculty Scholarship

International human rights law was born from the ashes of World War II. The most important post-World War II products are the United Nations, the Nuremberg Trials, the Universal Declaration of Human Rights, and the Geneva Conventions of 1949. But that was not the end of the story. International human rights law continued to develop and expand right up to September 11,2001, most notably through the adoption of the International Covenant on Civil and Political Rights2 and the Convention Against Torture, 3 and the establishment of the International Criminal Court.4 With the exception of the criminal court, the United States …

Gap Filling In The Zone Of Insolvency, Frederick Tung

Faculty Scholarship

This paper was prepared for a symposium - Twilight in the Zone of Insolvency: Fiduciary Duty and the Creditors of Troubled Companies - at the University of Maryland School of Law.

Attacks on shareholder primacy have come from numerous quarters, arguing for expansion of the class of beneficiaries of directors' fiduciary duties. Regarding duties to creditors - the focus of this symposium - a long line of cases has recognized that once a firm is insolvent, creditors should be the primary beneficiaries of directors' fiduciary duties. Then in 1991, Chancellor Allen's famous discussion in Credit Lyonnais identified a special vicinity …

Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh

Faculty Scholarship

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …

Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa, Peggy Maisel

Faculty Scholarship

Scholars have devoted considerable attention and resources to creating and expanding legal aid clinics, law school clinics, and university-based law clinics in order to make the law school experience more educational and relevant for law students in developing countries by introducing more skills training into the curriculum. Those who support the expansion of clinical legal education in South Africa and elsewhere have sought to achieve specific objectives related to improving legal education for students and providing assistance to economically disadvantaged groups.

Legal education is enhanced when it reflects the realities of the citizens within a country, such as South Africa …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

Faculty Scholarship

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.

Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Grounding Trademark Law Through Trademark Use, Stacey Dogan

Faculty Scholarship

The debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability …

Will Longer Antimicrobial Patents Improve Global Public Health?, Kevin Outterson

Faculty Scholarship

The problem of antimicrobial resistance has led some infectious disease experts and their professional societies to propose the use of transferable intellectual property rights (wildcard patents) and patent term extensions as methods to encourage antimicrobial R&D. We evaluate recent approvals of new antimicrobial classes and find the number of new introductions is higher than previously suggested. More importantly, creating new patent rights is shown to be an inefficient and possibly counterproductive response to antimicrobial resistance. Wildcard patents would operate as a more than US$40 billion annual tax on heart disease, hypertension, chronic obstructive pulmonary disease, asthma, and depression to inefficiently …

Walmart's Other Woman Problem: Sprawl And Work-Family Balancing, Katharine B. Silbaugh

Faculty Scholarship

Wal-Mart is often said to be bad for its workers, including those workers in its production chain in developing countries, and good for its consumers, most of whom are women. Most people argue that its consumers gain from low prices. This brief essay argues that consumers absorb a share of the costs of Wal-Mart's low prices. Contrary to intuition, Wal-Mart may increase significantly the financial and time pressures on its shoppers, the majority of whom can ill-afford increases in either. Most small retail is sited to take advantage of travel routines people have already established to meet their residential and …

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle K. Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher's strict liability standard as undermining economic development, American courts and …

A Search-Costs Theory Of Limiting Doctrines In Trademark Law, Stacey Dogan

Faculty Scholarship

Trademarks have value because they reduce consumer search costs and thus promote overall efficiency in the economy.

While the search costs theory provides a compelling argument for trademark rights, it also compels an equally important - but often overlooked - set of principles for defining and limiting those rights. Certainly, trademark laws can make it easier and cheaper for consumers to locate products with desired qualities, thus making markets more competitive. Yet if carried too far, trademark law can do the opposite: it can entrench market dominance by leading firms and make it harder for competitors to crack new markets. …

Physicians' Insurance Limits And Malpractice Payments: Evidence From Texas Closed Claims, 1990-2003, Kathryn Zeiler, Charles Silver, Bernard Black, David Hyman, William Sage

Faculty Scholarship

Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary …

Property Rules, Liability Rules, And Immunity: An Application To Cyberspace, Keith N. Hylton

Faculty Scholarship

This Article sets out a theory of torts and cyberspace wrongs. My goal is to provide a sparse theoretical account of tort law and apply it to cyberspace torts, both negligent and intentional. I approach this goal by applying the framework of property rules and liability rules to cyberspace torts. That framework suggests that trespass doctrine is appropriate in instances of cyber invasions of private information resources, such as the breaking of codes to access private information on the web. However, trespass doctrine should play no role in cyber-invasions of public information resources, such as the sending of spam email. …

Reprocessing Vermont Yankee, Jack M. Beermann, Gary S. Lawson

Faculty Scholarship

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a "Vermont Yankee II," in which the Court would similarly invalidate …

Tort Negligence, Cost-Benefit Analysis, And Tradeoffs: A Closer Look At The Controversy, Kenneth Simons

Faculty Scholarship

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution …

Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

Faculty Scholarship

Though they are sometimes regarded as corrupt, the complete cessation of existing interlocking boards in healthcare nonprofits is not immediately attainable and arguably not always desirable. This article comments that the doctrine of fiduciary duties should be modified to encompass the reality of overlapping boards; to recognize the trend toward more global, comprehensive, and proactive governance in the healthcare sector; and to enable directors to decipher, document, and resolve conflicts at a more meaningful point in their decision-making processes by expanding the doctrine of the duty of obedience.

To facilitate the discussion, the article draws on three examples of overlap …