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Agency Law In Cyberspace, Deborah A. Demott Jan 2006

Agency Law In Cyberspace, Deborah A. Demott

Faculty Scholarship

This short article articulates and defends the proposition that basic doctrines within common-law agency apply readily to transactions and other encounters effected through the internet. In cyberspace, as in physical space, common-law agency specifies the circumstances under which an actor's conduct should carry consequences for another person's legal position unless a statute provides otherwise. Recent cases illustrate an easy translation into cyberspace of concepts that are well-developed elsewhere, including the test of whether a particular relationship amounts to one of agency and whether a person acted with actual or apparent authority to bind another.


Arthur Taylor Von Mehren, 10. August 1922 - 17. January 2006, Ralf Michaels, Giesela Rühl Jan 2006

Arthur Taylor Von Mehren, 10. August 1922 - 17. January 2006, Ralf Michaels, Giesela Rühl

Faculty Scholarship

No abstract provided.


Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.


Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of ...


Million Dollar Medical Malpractice Cases In Florida: Post-Verdict And Pre-Suit Settlements, Neil Vidmar, Kara Mackillop, Paul Lee Jan 2006

Million Dollar Medical Malpractice Cases In Florida: Post-Verdict And Pre-Suit Settlements, Neil Vidmar, Kara Mackillop, Paul Lee

Faculty Scholarship

No abstract provided.


The Texture Of Loyalty, Deborah A. Demott Jan 2006

The Texture Of Loyalty, Deborah A. Demott

Faculty Scholarship

This paper examines whether and how reforms in corporate governance structures and practices in the United States may reshape conventional notions of the fiduciary duties owed by independent directors of public companies. The paper identifies two focal points for the evolution of directors' fiduciary duties. First, various reforms in corporate governance assign more specific responsibilities to directors, arguably reorienting directors' loyalty to due discharge of a specified function along with ongoing or residual duties of loyalty owed in more general terms to the corporation and its shareholders. The relationships among these specific duties and more general ones may be complex ...


How Strongly Should We Protect And Enforce International Law?, University Of Chicago Law School Workshop, March 2006, Joost H. B. Pauwelyn Jan 2006

How Strongly Should We Protect And Enforce International Law?, University Of Chicago Law School Workshop, March 2006, Joost H. B. Pauwelyn

Faculty Scholarship

Observers of international law are obsessed with trying to explain and predict why and when states comply with international law. Doing so, they have consistently overlooked a logically preceding, but no less important, question: To what extent should states perform their international commitments? Put differently, how strongly should we protect and enforce international law? Worrying as much about over-enforcement of international law as under-enforcement of international law, this article offers a theory of relative normativity. This theory is driven by efficiency, effectiveness and legitimacy concerns rather than a hierarchy of values. It makes distinctions between how international law allocates entitlements ...


A Pattern Of Parity And Particularity, In Who’S Ahead In Environmental Protection: The United States Or The European Union?, Jonathan B. Wiener Jan 2006

A Pattern Of Parity And Particularity, In Who’S Ahead In Environmental Protection: The United States Or The European Union?, Jonathan B. Wiener

Faculty Scholarship

A debate on the issue of who is ahead in environmental policy with contributions by Michael S. Caplan, Robert Donkers, Meaghan Purvis, Ernie Rosenberg and Jonathan B. Wiener


Credit Where It’S Due: The Law And Norms Of Attribution, Catherine Fisk Jan 2006

Credit Where It’S Due: The Law And Norms Of Attribution, Catherine Fisk

Faculty Scholarship

The reputation we develop by receiving credit for the work we do proves to the world the nature of our human capital. If professional reputation were property, it would be the most valuable property that most people own because much human capital is difficult to measure. Although attribution is ubiquitous and important, it is largely unregulated by law. In the absence of law, economic sectors that value attribution have devised non-property regimes founded on social norms to acknowledge and reward employee effort and to attribute responsibility for the success or failure of products and projects. Extant contract-based and norms-based attribution ...


Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai Jan 2006

Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai

Faculty Scholarship

In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the ...


Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels Jan 2006

Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels

Faculty Scholarship

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, and ...


‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl Jan 2006

‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl

Faculty Scholarship

While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush's campaign in 1988, successive administration have pledged to ensure there would be "no net loss" of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental ...


Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler Jan 2006

Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler

Faculty Scholarship

In this article, I argue that from 1992 (when the Lucas case was decided) and for almost ten years thereafter, what I call the "Scalian view" of property and justice dominated Supreme Court jurisprudence. Under this vision, property provides a concrete, objectively knowable, and immutable legal barrier which marks the line between protected individual interests and the exercise of collective power. If government transgresses this line, the individual is almost always deemed to have been wronged. And compensation is required, as a matter of "justice," under the Takings Clause. I argue that with the Court's decisions in Palazzolo and ...


The Functional Method Of Comparative Law, Ralf Michaels Jan 2006

The Functional Method Of Comparative Law, Ralf Michaels

Faculty Scholarship

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method ...


Financial Information Failure And Lawyer Responsibility, Steven L. Schwarcz Jan 2006

Financial Information Failure And Lawyer Responsibility, Steven L. Schwarcz

Faculty Scholarship

When public firms collapse amid allegations of financial information failure-such as misleading financial statements-society looks beyond the role of accountants to see who else should be held responsible. Lawyers advising the firm increasingly are charged with responsibility, perhaps because modern financial and business complexities, as well as rules that make accounting determinations turn in part on legal conclusions, have blurred the boundary between legal and accounting duties. Lawyers should want to satisfy this responsibility not only to avoid liability but also to safeguard their reputation and integrity. The difficult question, which this article attempts to answer, is what that responsibility ...


“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas Jan 2006

“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

The Supreme Court's March 2005 decision in 'Exxon Mobil Corp. v. Saudi Basic Industries Corp.' substantially limited the "Rooker-Feldman" doctrine, under which lower federal courts largely lack jurisdiction to engage in what amounts to de facto review of state-court decisions. Exxon Mobil's holding is quite narrow--entry of a final state-court judgment does not destroy federal-court jurisdiction already acquired over parallel litigation. But the Court's articulation of when Rooker-Feldman applies, and its approach in deciding the case, have significant implications for several aspects of Rooker-Feldman jurisprudence. Chief among our claims is that although the Court did not expressly ...


Thirst: A Short History Of Drinking Water, James Salzman Jan 2006

Thirst: A Short History Of Drinking Water, James Salzman

Faculty Scholarship

From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies. A social resource, access to water reveals much about membership in society. A political resource, the provision of water to ...


Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman Jan 2006

Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman

Faculty Scholarship

This article first sets out the child welfare system's assumption that there is a child welfare exception to the Fourth Amendment and then describes the ways it is used to facilitate child maltreatment investigations. It goes on to analyze the validity of this assumption according to current Fourth Amendment doctrine including under the special needs administrative exception. (This analysis may be particularly useful to both family/children's law scholars as well as to Fourth Amendment scholars, as it examines all of the state and federal appellate cases addressing the subject, and provides a most up-to-date evaluation of the ...


Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher Jan 2006

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.


Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher Jan 2006

Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher

Faculty Scholarship

This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana’s customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector.


Combatant Status Review Tribunals: Flawed Answers To The Wrong Question, Joseph Blocher Jan 2006

Combatant Status Review Tribunals: Flawed Answers To The Wrong Question, Joseph Blocher

Faculty Scholarship

This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantánamo detainees should still be treated as presumptive POWs.


Not Fully Committed? Reservations, Risk And Treaty Design, Laurence R. Helfer Jan 2006

Not Fully Committed? Reservations, Risk And Treaty Design, Laurence R. Helfer

Faculty Scholarship

This Essay responds to Reserving, a forthcoming Article by Professor Edward T. Swaine to be published in the Yale Journal of International Law. The Essay first reviews the Article's explanation of the complex and often counterintuitive rules that govern the filing of unilateral reservations to multilateral treaties. It then offers three modest additions to Professor Swaine's insightful contribution to the growing body of interdisciplinary scholarship on treaty design. First, the Essay applies Swaine's theory of state interests and information to a dynamic model that takes account of temporal issues such as when states file reservations and how ...


Understanding Change In International Organizations: Globalization And Innovation In The Ilo, Laurence R. Helfer Jan 2006

Understanding Change In International Organizations: Globalization And Innovation In The Ilo, Laurence R. Helfer

Faculty Scholarship

This Article uses an interdisciplinary approach to explain why the International Labor Organization (ILO) has been given surprisingly short shrift in recent debates over the role of IOs in addressing the many transborder collective action problems that globalization has fostered. I review the ILO's past and its present with two broad objectives in mind. First, I seek to correct a misperception among international lawyers and legal scholars that the ILO is a weak and ineffective institution. The organization's effectiveness in creating and monitoring international labor standards has fluctuated widely during its nearly ninety-year existence. Over the last decade ...


Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker Jan 2006

Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract ...


The Blaming Function Of Entity Criminal Liability, Samuel W. Buell Jan 2006

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an ...


Novel Criminal Fraud, Samuel W. Buell Jan 2006

Novel Criminal Fraud, Samuel W. Buell

Faculty Scholarship

The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law's open-textured, common-law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor's ...


From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs Jan 2006

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The standard ...


The Rehnquist Court And The Death Penalty, Erwin Chemerinsky Jan 2006

The Rehnquist Court And The Death Penalty, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati Jan 2006

A Response To Professor Sander: Is It Really All About The Grades?, James E. Coleman Jr., Mitu Gulati

Faculty Scholarship

Response to Richard Sander, The Racial Paradox of the Corporate Law Firm, 84 North Carolina Law Review 1755 (2006)


The Rat Race As An Information Forcing Device, Mitu Gulati, Scott Baker, Stephen J. Choi Jan 2006

The Rat Race As An Information Forcing Device, Mitu Gulati, Scott Baker, Stephen J. Choi

Faculty Scholarship

In many job settings, there will be some promotion criteria that are less amenable to measurement than others. Often, what is difficult to measure is more important. For example, possessing "good judgment" under pressure may be a better predictor of success as a law firm partner than the ability to bill a vast amount of hours. The first puzzle that this essay explores is why, in some promotion settings, organizations appear to focus on less important, but measurable, criteria such as hours billed. The answer lies in the relationship between the objectively measurable criteria on the one hand, and the ...