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Race, Redistricting, And Representation, Guy-Uriel Charles Jan 2007

Race, Redistricting, And Representation, Guy-Uriel Charles

Faculty Scholarship

This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.


Purposes And Effects In Criminal Law, Samuel W. Buell Jan 2007

Purposes And Effects In Criminal Law, Samuel W. Buell

Faculty Scholarship

This brief comment, published in the Virginia Law Review's online companion, responds to Richard Bierschbach's and Alex Stein's article, Mediating Rules in Criminal Law.


A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne Jan 2007

A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne

Faculty Scholarship

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.


Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young Jan 2007

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.


Structural Reform Prosecution, Brandon L. Garrett Jan 2007

Structural Reform Prosecution, Brandon L. Garrett

Faculty Scholarship

In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors adopted a bold new prosecutorial strategy under which dozens of leading corporations entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies …


Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer Jan 2007

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer

Faculty Scholarship

No abstract provided.


Criminal Procedure Within The Firm, Samuel W. Buell Jan 2007

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …


Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell Jan 2007

Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell

Faculty Scholarship

Present sentencing law in criminal cases of financial reporting fraud is embarrassingly flawed. The problem is urgent given that courts are now regularly sentencing corporate offenders, sometimes (but sometimes not) to extremely punitive terms of imprisonment. Policing of fraud by multiple jurisdictions in a federal system means that principled sentencing law is necessary not only for first-order policy reasons but also for coordination of sanctioning efforts. Proportionality and rationality demand that sentencing law have an agreed scale for measuring cases of financial reporting fraud in relation to each other, a sound methodology for fixing a given case on that scale, …


Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman Jan 2007

Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …


Creating Online Tutorials: Five Lessons Learned, Lauren M. Collins Jan 2007

Creating Online Tutorials: Five Lessons Learned, Lauren M. Collins

Faculty Scholarship

No abstract provided.


Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller Jan 2007

Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller

Faculty Scholarship

No abstract provided.


The Politics Of Preclearance, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2007

The Politics Of Preclearance, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …


Toward A New Civil Rights Framework, Guy-Uriel Charles Jan 2007

Toward A New Civil Rights Framework, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.


Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest Jan 2007

Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest

Faculty Scholarship

No abstract provided.


Toward A Framework Statute For Supranational Adjudication, Ernest A. Young Jan 2007

Toward A Framework Statute For Supranational Adjudication, Ernest A. Young

Faculty Scholarship

No abstract provided.


Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr. Jan 2007

Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.


Disloyal Agents, Deborah A. Demott Jan 2007

Disloyal Agents, Deborah A. Demott

Faculty Scholarship

This paper examines the consequences of an agent's breach of the fiduciary duty of loyalty. These consequences are underexplored in academic literature, in contrast to rationales for fiduciary duties more generally. The consequences of an agent's disloyalty are, moreover, not uniform across jurisdictions. The paper begins by differentiating between the meaning and consequences that the law ascribes to agency and its meaning in other academic disciplines, including economics and philosophy. It then considers the extent to which principles derived from contract and tort law can account for the consequences that courts assign to agents' disloyal conduct and concludes that a …


Knowledge Commons: The Case Of The Biopharmaceutical Industry, Arti K. Rai Jan 2007

Knowledge Commons: The Case Of The Biopharmaceutical Industry, Arti K. Rai

Faculty Scholarship

No abstract provided.


Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler Jan 2007

Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Democracy And Distortion, Guy-Uriel Charles Jan 2007

Democracy And Distortion, Guy-Uriel Charles

Faculty Scholarship

This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes - political gerrymandering - may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme …


Book Review, Laurence R. Helfer Jan 2007

Book Review, Laurence R. Helfer

Faculty Scholarship

reviewing Eyal Benvenisti & Moshe Hirsch eds., The Impact of International Law on International Cooperation: Theoretical Perspectives (2004)


Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca 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 history, the …


The Constitution Outside The Constitution, Ernest A. Young Jan 2007

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 Jan 2007

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 Jan 2007

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 Jan 2007

Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams

Faculty Scholarship

No abstract provided.


Immigration Law And The Regulation Of Marriage, Kerry Abrams Jan 2007

Immigration Law And The Regulation Of Marriage, Kerry Abrams

Faculty Scholarship

No abstract provided.


United States V. Goliath, Brandon L. Garrett Jan 2007

United States V. Goliath, Brandon L. Garrett

Faculty Scholarship

No abstract provided.


Book Review, Jennifer L. Behrens Jan 2007

Book Review, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle Jan 2007

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 …