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Articles 1 - 30 of 102
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Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Faculty Scholarship
Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.
The New European Choice-Of-Law Revolution, Ralf Michaels
The New European Choice-Of-Law Revolution, Ralf Michaels
Faculty Scholarship
Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with …
Systemic Risk, Steven L. Schwarcz
Systemic Risk, Steven L. Schwarcz
Faculty Scholarship
Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can access …
Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner
Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner
Faculty Scholarship
James M. Donovan’s article: Skating on Thin Intermediation: Can Libraries Survive?, 27 Legal Reference Services Q. 95 (no. 2-3, 2008) argues that librarians place more emphasis than they might on providing service to library users at a time when information seekers are relying less on intermediaries, and that over-emphasizing service to the detriment of other values diminishes the status of librarianship as a profession. The article presents two contrasting models of librarianship. This article discusses Donovan’s models and comments on the continuing importance of the service model to librarianship.
Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller
Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller
Faculty Scholarship
In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a …
Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman
Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman
Faculty Scholarship
Seeking to redress health disparities across income and race, many policy-makers mandate health insurance benefits, presuming that equalized benefits will help equalize use of beneficial health services. This paper tests that presumption by measuring health care use by a diverse population with comprehensive health insurance. Focusing on use of mental health care and pharmaceuticals, it finds that even when insurance benefits and access are constant, whites and those with high incomes consume more of these benefits than other people do. This suggests that privileged classes extract more health care services even when everyone pays equal premiums for equal insurance coverage.
Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman
Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman
Faculty Scholarship
Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles …
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
Faculty Scholarship
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …
Nonconsensual International Lawmaking, Laurence R. Helfer
Nonconsensual International Lawmaking, Laurence R. Helfer
Faculty Scholarship
This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive “compliance deficit.” But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This “participation deficit” helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. …
Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz
Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz
Faculty Scholarship
This symposium article examines how disclosure, the regulatory focus of the federal securities laws, has failed to achieve transparency in the sub-prime mortgage crisis and what this failure means for modern financial securities markets.
Prosecuting Aggression, Noah Weisbord
Prosecuting Aggression, Noah Weisbord
Faculty Scholarship
The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …
The State Of Public Access To Federal Government Databases Detailed In Recommended New Book, Jennifer L. Behrens
The State Of Public Access To Federal Government Databases Detailed In Recommended New Book, Jennifer L. Behrens
Faculty Scholarship
No abstract provided.
Nothing But The Truth? Experiments On Adversarial Competition, Expert Testimony, And Decision Making, Cheryl Boudreau, Mathew D. Mccubbins
Nothing But The Truth? Experiments On Adversarial Competition, Expert Testimony, And Decision Making, Cheryl Boudreau, Mathew D. Mccubbins
Faculty Scholarship
Many scholars debate whether a competition between experts in legal, political, or economic contexts elicits truthful information and, in turn, enables people to make informed decisions. Thus, we analyze experimentally the conditions under which competition between experts induces the experts to make truthful statements and enables jurors listening to these statements to improve their decisions. Our results demonstrate that, contrary to game theoretic predictions and contrary to critics of our adversarial legal system, competition induces enough truth telling to allow jurors to improve their decisions. Then, when we impose additional institutions (such as penalties for lying or the threat of …
Odious Debts And Nation-Building: When The Incubus Departs, Mitu Gulati, Lee C. Buchheit
Odious Debts And Nation-Building: When The Incubus Departs, Mitu Gulati, Lee C. Buchheit
Faculty Scholarship
No abstract provided.
Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins
Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins
Faculty Scholarship
reviewing Voices of American Law documentary series(Thomas B. Metzloff & Sarah Wood producers)
The Constitutive And Entrenchment Functions Of Constitutions: A Research Agenda, Ernest A. Young
The Constitutive And Entrenchment Functions Of Constitutions: A Research Agenda, Ernest A. Young
Faculty Scholarship
No abstract provided.
Amending The Exceptions Clause, Joseph Blocher
Amending The Exceptions Clause, Joseph Blocher
Faculty Scholarship
Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these two forms of constitutional politicking interact. As legislators increasingly propose and pass jurisdiction-stripping legislation and pursue politically charged constitutional amendments, these constitutional processes have begun to step off of the pages of law reviews and into the halls of Congress. The looming collision between them makes it all the more …
Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah Purdy, James Salzman
Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah Purdy, James Salzman
Faculty Scholarship
The Mexicans have long been known as the Corn People, but that label perhaps provides a better fit for modern day Americans. The simple seeds of corn play a fundamental role unprecedented in the history of human agriculture. Corn now underpins two major sectors, arguably the two most important sectors, of our modern economy - food supply and energy supply. How we choose to consume this seed has far-ranging consequences for pressing issues as far apart as climate change and diabetes, energy policy and immigration, tropical deforestation and food riots.
Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So
Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So
Faculty Scholarship
Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur …
Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman
Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman
Faculty Scholarship
Recent discussions in health reform circles have pinned great hopes on the prospect of innovation as the solution to the high-cost, inadequate-quality U.S. health system. But U.S. health care institutions--insurers, providers and specialists--have ceded leadership in innovation to Indian hospitals such as Care Hospital in Hyderabad and the Fortis Hospitals around New Delhi, which have U.S.-trained doctors and can perform open heart surgery for $6000 (compared to $100,000 in the United States). The Indian success is a window into America's stalemate with inflating costs and stagnant innovation.
The Public Domain: Enclosing The Commons Of The Mind, James Boyle
The Public Domain: Enclosing The Commons Of The Mind, James Boyle
Faculty Scholarship
Our music, our culture, our science and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, …
Self-Execution And Treaty Duality, Curtis A. Bradley
Self-Execution And Treaty Duality, Curtis A. Bradley
Faculty Scholarship
The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the "supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are "self-executing." The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, …
Climate Change Policy, And Policy Change In China, Jonathan B. Wiener
Climate Change Policy, And Policy Change In China, Jonathan B. Wiener
Faculty Scholarship
Solving the climate change problem by limiting global greenhouse gas (GHG) emissions will necessitate action by the world’s two largest emitters, the United States and China. Neither has so far committed to quantitative emissions limits. Some argue that China cannot be engaged on the basis of its national interest in climate policy, on the ground that China’s national net benefits of limiting greenhouse gas emissions would be negative, as a result of significant GHG abatement costs and potential net gains to China from a warmer world. This premise has led some observers to advocate other approaches to engaging China, such …
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
Faculty Scholarship
No abstract provided.
Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee
Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee
Faculty Scholarship
No abstract provided.
Irrevocable Proxies, Deborah A. Demott
Irrevocable Proxies, Deborah A. Demott
Faculty Scholarship
This short article explores the circumstances under which the power to vote shares owned by another may be made irrevocable. Irrevocable proxies often serve as integral ingredients within corporate governance arrangements because they serve as mechanisms that enable alliances among shareowners or enhance the holder’s voting power in disproportion to the holder’s residual economic interest in the corporation. The rights and duties of holders of irrevocable proxies are best understood against a background of common-law agency relationships, in which agent and principal always have the power–albeit having contracted otherwise–to terminate their relationship and the agent’s actual authority. Courts in the …
Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris
Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris
Faculty Scholarship
On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.
Foreword: Making Sense Of Information For Environmental Protection, James Salzman, Douglas A. Kysar
Foreword: Making Sense Of Information For Environmental Protection, James Salzman, Douglas A. Kysar
Faculty Scholarship
Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual's or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with …
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
Lawfare Today: A Perspective, Charles J. Dunlap Jr.
Lawfare Today: A Perspective, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.