Digital Commons Network^™

Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Faculty Articles

Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.

Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam E. Gilles, Gary B. Friedman

Faculty Articles

In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice …

The Questioning Attitude: Questions About Derrida, Martin J. Stone

Faculty Articles

No abstract provided.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Faculty Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

Faculty Articles

Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

Maccrate (In)Action: The Case For Enhancing The Upper-Level Writing Requirement In Law Schools, Kenneth D. Chestek

Faculty Articles

In 2001 the American Bar Association amended the Standards for Accreditation of Law Schools to require for the first time a rigorous writing experience after the first year During the summer of 2004 the author conducted a nationwide survey to determine how law schools responded to this change The author found that most schools did little more than to require students to take at least one course which was evaluated by means of an academic paper rather than an examination The author concludes that this is probably not the response the ABA had hoped for but suggests that a 2005 …

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

Academic Discourse And Proprietary Rights: Putting Patents In Their Proper Place, Margo A. Bagley

Faculty Articles

This Article provides a fresh perspective on the Bayh-Dole debate by focusing on the impact of patent novelty rules on academic discourse. The Article proposes that to begin to reverse an observed deterioration in disclosure norms, flexibilities must be built into the patent system so that patents can be facilitators of the academic knowledge dissemination enterprise. In particular, the Article advocates creation of an opt-in extended grace period that would provide more time for academic researchers to publish and present early-stage research before having to file a patent application. Such an extension, coupled with early application publication, would both address …

The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine

Faculty Articles

This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …

The Law Is Not The Case: Incorporating Empirical Methods Into The Culture Of Case Analysis, Kay L. Levine

Faculty Articles

While I consider case analysis in the context of cultural defense jurisprudence, this Essay should be regarded as a case study of a more endemic problem in legal scholarship. In tackling such an area, my goal is not to overthrow centuries of legal analysis, but rather to explore how we, as legal scholars, might use social science techniques to more systematically investigate, document, analyze, and predict the state of a particular comer of the legal universe.

The argument proceeds in two parts. Part II considers empirical approaches to the question raised by Lee: how might we ascertain the relationship between …

Wireless Canopies?, Michael Simonson

Faculty Articles

No abstract provided.

Rules Of Thumb, Or Derots, Michael Simonson

Faculty Articles

No abstract provided.

It Costs How Much? Estimating The Costs To Design And Develop A Distance Delivered Course, Michael Simonson

Faculty Articles

No abstract provided.

And Finally … If It Is Intellectual, Can It Be Property?, Michael Simonson

Faculty Articles

Excerpt

Carol Twigg, executive director of the Center for Academic Transformation, has written and spoken extensively in the area of intellectual property and ownership of online courses and course materials. A reading of the abstract of her excellent monograph Intellectual Property Policies for a New Learning Environment is a requirement for any serious distance educator (Twigg, 2000). It is wellwritten, informative, and thought-provoking.

Design Based Research Applications For Distance Education, Michael Simonson

Faculty Articles

No abstract provided.

Bloom’S Taxonomy Utilized To Develop Differentiated Instruction In A Heterogeneous Classroom, David B. Ross

Faculty Articles

No abstract provided.

Growing By Degrees: Latest Report Of The Sloan, Michael Simonson

Faculty Articles

No abstract provided.

Teaching Courses Online: A Challenge For The Field, Michael Simonson

Faculty Articles

No abstract provided.

The 50% Rule: Going Away: A Challenge For The Field, Michael Simonson

Faculty Articles

No abstract provided.

Framing Effects And Regulatory Choice, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. First, in Part I, I describe the contributions of behavioral law and economics literature, and then focus on the notion of framing effects. In Part II, I provide an overview of the regulatory tools generally available to environmental regulators. In Part III, I elucidate the "right to pollute" and "commodification" critiques as applied to environmental regulation. In Part IV, I analyze the economically proper scope of the "right to pollute" and "commodification" critiques with respect to environmental regulatory instruments. In Part V, I first describe the differing frames of various environmental regulatory tools. I then …

The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley

Faculty Articles

The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, Risk, Uncertainty, and Profit. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow the …

Whose Job Is It Anyway?: Governmental Obligations Created By The Human Right To Water, Amy Hardberger

Faculty Articles

The importance of water is difficult to quantify, but because it is necessary for survival, it deserves recognition as a human right. Although the right to water has received considerable attention, it has not yet achieved the status of customary international law.

If the human right to water becomes an accepted norm of international law, there could be differing consequences for governments. A human right is enforceable by a citizen against her government by investigating intragovernmental responsibilities in different contexts, including times of peace and more complicated relationships, such as those created in times of conflict or belligerent occupation. Different …

Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby, Gerald S. Reamey

Faculty Articles

The Supreme Court decision in Bates v. State Bar of Arizona ruled that lawyer advertising is commercial speech subject to First Amendment protection. However, a Texas disciplinary statute provided that “a lawyer shall not publicize himself, his partner, or associate…through newspaper or magazine advertisements, radio or television announcements…or other means of commercial publicity.” Despite being clearly unconstitutional, the Texas statute remained law for five years. Finally, responding to Bates in September 1977, the Texas State Bar Board of Directors adopted an official statement which allowed for limited advertising in newspapers, and only to the extent which was provided for by …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The definitions, especially those relating to the issues of what constitutes a security, who may recover, and the territorial reach, determine the scope of the securities acts. The Fifth Circuit issued one decision concerning standing to sue under section 11 of the Securities Act of 1933.

The State Securities Board amended its form for public information charges and billing detail to reflect current fees for public information established by the Texas Building and Procedures Commission. The Board adopted new rules reorganizing the exemption for sales to financial institutions and certain institutional investors under the Texas Securities Act (“TSA”) and reconsidered …

Terrorism Law, Jeffrey F. Addicott

Faculty Articles

The hard reality is that the United States has declared war on a tactic—terror. The nation must accept lawful force as the only tool that will allow us to win the war against our enemy. The “War on Terror” is unlike anything the people of the United States have seen or fought before. The issue is: Are we at war, or is this simply a metaphor like the “war on drugs” or the “war on poverty?” The Act of Congress signed by President George W. Bush was the first legal document that began to answer this inquiry. The 2006 Military …

Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason

Faculty Articles

The concept of using legal structures to protect property from those who might otherwise have some claim to it is an idea with deep roots. The trust device is one such legal structure, and its evolution as an asset protection device has not been without controversy. The recent and noticeable break with the traditional denial of self-settled trust protections is one such area of modern controversy, but not the only notable recent development. The self-setted asset protection trust movement is accompanied by the recent completion of two major law reform projects. The drafting and recommendation for state adoption of a …

Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud

Faculty Articles

This article argues that the discourse of viability of civil society in postcolonial polities is theoretically ungrounded, and helps to further marginalize subordinated sections of these societies. These failings result from the imprisonment of dominant social theories in Eurocentric unilinear evolutionism, an imprisonment that blinds one from the particularities of supposedly universal categories that issue from Europe's experience of modernity. Furthermore, enthusiasm for civil society ignores the truncated colonial career of modernity and the nature of the postcolonial state. In order to substantiate these propositions, the paper traces the genealogy of the concept of civil society, examines the colonial career …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

Leveling The Playing Field: Helping Students Succeed By Helping Them Learn To Read As Expert Lawyers, Laurel Oates

Faculty Articles

The article explores a way in which law schools can level the field of student admission in order to ensure the success of students as law students and as lawyers in the United States. A study which compares the reading skills of a professor and four students who had been admitted to law school under a special admissions program is presented. It provides the techniques for students to develop their reading skills. It emphasizes on the importance of teaching legal reading.

A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro

Faculty Articles

Recent years have seen a proliferation of alternative reproductive technologies and the ready availability of reliable DNA testing. These developments have lead to enormous uncertainty concerning the meaning of a genetic tie between adult and child. On the one hand, reproductive technology has lead to a robust market where genetic material is readily bought and sold. This suggests it is not the root of parental status. On the other hand, DNA testing has allowed men to contest paternity of children, asserting that they are not genetically related to them. And their challenges have often been successful. Genetic linkage is particularly …