Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Constitutional law (5)
- Empirical (5)
- Comparative law (4)
- Courts (4)
- Federal government (4)
-
- Patents (4)
- Race discrimination (3)
- Right of privacy (3)
- Well-being (3)
- Appellate courts (2)
- Appellate procedure (2)
- Copyright (2)
- Creative ability (2)
- Criminal liability (2)
- Criminal procedure (2)
- Democracy (2)
- Detention of persons--United States (2)
- Ecosystem services (2)
- Election law (2)
- Emigration and immigration law (2)
- European Union--Politics and government (2)
- Gerrymandering (2)
- Hazard mitigation (2)
- Human rights (2)
- Imperialism (2)
- International law (2)
- International relations (2)
- Inventions (2)
- Law--Interpretation and construction (2)
- Planning (2)
Articles 1 - 30 of 111
Full-Text Articles in Entire DC Network
The Constitution Outside The Constitution, Ernest A. Young
The Constitution Outside The Constitution, Ernest A. Young
Faculty Scholarship
Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …
Why De Minimis?, Matthew D. Adler
Why De Minimis?, Matthew D. Adler
Faculty Scholarship
De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative individual risk thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100 - year - flood or 475 - year - earthquake; de minimis failure probabilities for built structures; the exclusion of low - probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the …
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
Faculty Scholarship
No abstract provided.
Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams
Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams
Faculty Scholarship
No abstract provided.
Book Review, Jennifer L. Behrens
Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle
Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle
Faculty Scholarship
Synthetic biologists aim to make biology a true engineering discipline. In the same way that electrical engineers rely on standard capacitors and resistors, or computer programmers rely on modular blocks of code, synthetic biologists wish to create an array of modular biological parts that can be readily synthesized and mixed together in different combinations. Synthetic biology has already produced important results, including more accurate AIDS tests and the possibility of unlimited supplies of previously scarce drugs for malaria. Proponents hope to use synthetic organisms to produce not only medically relevant chemicals but also a large variety of industrial materials, including …
Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami
Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami
Faculty Scholarship
This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …
Legal Information And The Development Of American Law: Writings On The Form And Structure Of The Published Law, Richard A. Danner
Legal Information And The Development Of American Law: Writings On The Form And Structure Of The Published Law, Richard A. Danner
Faculty Scholarship
Robert C. Berring's writings about the impacts of electronic databases, the Internet, and other communications technologies on legal research and practice are an essential part of a larger literature that explores the ways in which the forms and structures of published legal information have influenced how American lawyers think about the law. This paper reviews Berring's writings, along with those of other writers concerned with these questions, focusing on the implications of Berring's idea that in the late nineteenth century American legal publishers created a "conceptual universe of thinkable thoughts" through which U.S. lawyers came to view the law. It …
Think Globally, Act Globally: The Limits Of Local Climate Policies, Jonathan B. Wiener
Think Globally, Act Globally: The Limits Of Local Climate Policies, Jonathan B. Wiener
Faculty Scholarship
State-level actions to address global climate change, such as laws and litigation recently undertaken by California and by several Northeastern states to limit greenhouse gas (GHG) emissions, reflect creative legal strategies understandably intended to achieve a major environmental objective while the US federal government has not joined the Kyoto Protocol and has not yet adopted national legislation. But even assuming that forestalling global climate change is urgently needed, state-level action is not the best way to do so. Acting locally is not well suited to regulating moveable global conduct yielding a global externality. Legally, state-level action confronts several obstacles, including …
Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray
Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray
Faculty Scholarship
The landmark case of Illinois Brick Co. v. Illinois, which denied standing to indirect purchasers to sue antitrust violators, has been subjected to steady and widespread criticism since it was decided in 1977. Despite three decades of dissatisfaction, however, debate over indirect purchaser standing has failed to generate satisfying solutions that meet the objectives of antitrust law and reflect its underlying principles. We attribute the lack of creative alternatives to an undue emphasis on legal formalism, fostered both by the Supreme Court's elaboration of the indirect purchaser rule and the doctrine's failure to recognize the pervasiveness of multilayer supply chains. …
Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington
Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington
Faculty Scholarship
Abstract not available
The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott
The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott
Faculty Scholarship
No abstract provided.
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Challenging Direct Democracy, Erwin Chemerinsky
Challenging Direct Democracy, Erwin Chemerinsky
Faculty Scholarship
I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why.
Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler
Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler
Faculty Scholarship
No abstract provided.
Injunctions In Defamation Cases, Erwin Chemerinsky
Injunctions In Defamation Cases, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis
Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis
Faculty Scholarship
Although extralegal enforcement is widely acknowledged, the conventional understanding of written contract provisions, such as the complex and detailed provisions in bond contracts, is that they are drafted to be enforced by law. This framing neglects the value of contracts in shaping extralegal forces, particularly where litigation is unlikely or not possible. Sovereign debt contracts provide an example in which lengthy and detailed contracts play a key role even though the debtor is largely litigation-proof. We examine how contract provisions in sovereign debt contracts improve the efficiency of creditor control outside the realm of legal enforcement.
Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris
Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris
Faculty Scholarship
No abstract provided.
A Reverse Notice And Takedown Regime To Enable Public Interest Uses Of Technically Protected Copyrighted Works, Jerome H. Reichman, Graeme B. Dinwoodie, Pamela Samuelson
A Reverse Notice And Takedown Regime To Enable Public Interest Uses Of Technically Protected Copyrighted Works, Jerome H. Reichman, Graeme B. Dinwoodie, Pamela Samuelson
Faculty Scholarship
No abstract provided.
Some Notes On Principled Pragmatism, Christopher H. Schroeder
Some Notes On Principled Pragmatism, Christopher H. Schroeder
Faculty Scholarship
Symposium dedicated to the work of Professor Paul J. Mishkin. This article examines several articles by Mishkin. One of the ideas developed here stresses the importance of being mindful of the wider context within which the Supreme Court operates.
Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young
Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young
Faculty Scholarship
Symposium dedicated to the work of Professor Paul J. Mishkin. This essay explores the Mishkin's theory of protective jurisdiction and applyies it to contemporary controversies.
The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman
The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman
Faculty Scholarship
No abstract provided.
Writing Other Peoples’ Constitutions, Paul D. Carrington
Writing Other Peoples’ Constitutions, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller
Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller
Faculty Scholarship
This essay focuses on the limits of deception practiced before the suspect waives his or her rights under Miranda v. Arizona (1966). In Miranda, the Court stated: [A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the suspect did not voluntarily waive his privilege. The quotation appears to forbid any evidence of threats, tricks, or cajolery, which contributes to a waiver of the privilege, creating a per se exclusion. However, in Moran v. Burbine (1986), the Court shifts focus away from the nature of the police conduct to its effect on …
Intellectual Property: Does Ip Harm Or Help Developing Countries?, Jerome H. Reichman
Intellectual Property: Does Ip Harm Or Help Developing Countries?, Jerome H. Reichman
Faculty Scholarship
No abstract provided.
School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher
School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher
Faculty Scholarship
In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlight the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have …
Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer
Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer
Faculty Scholarship
This Article, prepared for a Symposium on Intellectual Property and Social Justice held at the University of California at Davis School of Law in March 2006, addresses the growing intersection of human rights law and intellectual property law. Its principal point of departure is a November 2005 General Comment on "the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" - a relatively obscure provision of the International Covenant on Economic, Social and Cultural Rights. The Article builds upon the analysis …
On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco
On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco
Faculty Scholarship
No abstract provided.
Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan
Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan
Faculty Scholarship
We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than …
Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise (Duke Law, Student Paper Series), Blake Hudson
Faculty Scholarship
Important species are increasingly becoming endangered on private lands largely left unregulated by federal and state laws. The gopher tortoise is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species exist. Despite its importance, tortoise populations have declined by 80% - partly due to development pressures, but primarily due to forest management practices which have reduced the longleaf pine ecosystem upon which it depends. This article focus on legal and policy issues associated with both development and forest management. Because private forest management practices are the primary cause of tortoise decline, the …