Law Commons^™

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Articles

The importance of liability law to the American system of justice, and to the US economy in general, are well known. Somewhat less well known, at least among non-lawyers, is the corresponding centrality of liability insurance. For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. Such coverage, provided by state-regulated insurance companies, ranges from auto and homeowners’ policies (sold to consumers throughout the country) to commercial general liability policies (sold to businesses of all sizes) to professional liability policies of various sorts (including Directors and Officers coverage …

Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon

Barry Law Review

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Law Faculty Scholarship

No abstract provided.

Michigan's Reception Of The Common Law: A Study In Legal Development, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

The Defend Trade Secrets Act: Why Interpreting The New Law On Its Own Terms Promotes Uniformity, Patrick Ruelle

Marquette Intellectual Property Law Review

Trade secrets, a category of intellectual property recognized at state and federal law, are integral parts of many corporations’ intellectual property portfolios. A trade secret is a type of intellectual property that is not disclosed by its owner, and is therefore unlike patents, trademarks, or copyrights—all types of information that are disclosed to the public. As a result, trade secrets may represent a viable alternative to patents and copyrights since its value is derived from its secrecy.

In the United States, the laws governing trade secrets have typically been the offspring of the state common law. As each state developed …

Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano

Brooklyn Journal of Corporate, Financial & Commercial Law

The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

A New History Of Waste Law: How A Misunderstood Doctrine Shaped Ideas About The Transformation Of Law, Jill M. Fraley

Marquette Law Review

In the traditional account, American courts transformed the law of waste, radically diverging from the British courts around the time of the American Revolution. Some of the most influential theorists of American legal history have used this account as evidence that American law is driven by economics. Due to its adoption by influential scholars, this traditional account of waste law has shaped not only our understanding of property law, but also how we view the process of transforming law.

That traditional account, however, came not from a history of the doctrine, but from an elaboration of the benefits of the …

Wisdom And Reason In Law, Steven D. Smith

University of Colorado Law Review

No abstract provided.

Save Some For The Fishes: Analyzing The St. Jude's Co. Decision And What It Means For Beneficial Use In Colorado, John Sittler

University of Colorado Law Review

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Roger Williams University Law Review

No abstract provided.

An Ghaoth A Chriofidh An Eorna: The Moral Economy Of Ireland's Whiteboys, 1761-1787., Connor Bartlett Mcdermott

Senior Projects Spring 2017

In 1761, the peasantry of Ireland rose in insurrection against enclosure and tithes. The initial wave of protesters were known as 'Whiteboys,' and their insurrection came to be a model for subsequent Irish agrarian redresser movements throughout the eighteenth and nineteenth century. Applying E.P. Thompson’s theory of moral economy to the practice of Whiteboyism reveals the sophisticated motives which lay behind the Whiteboy’s 18th century protests against enclosure, tithes, and middlemen in rural Ireland. Senior Project submitted to The Division of Social Studies of Bard College.

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin

Articles

It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

All Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …

The Value Of The Restatement Of Employment Law, Based On 50-State Empirical Analyses And The Importance Of Clarifying Disputed Issues – But With Caveats About The Restatement’S Imperfect Work Product, Scott A. Moss

Publications

No abstract provided.

Agency Law And The New Economy, Mark J. Loewenstein

Publications

This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. …

The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang

All Faculty Publications

We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies and potentially …

Jailhouse Informants In Canadian Criminal Courts, Olena Beshley

Theses and Dissertations (Comprehensive)

Criminal justice systems in Canada and around the world have been established to deal with matters that require attention, punishment, and justice. An important function of criminal justice systems is the evaluation of evidence presented in the court of law. Evidence from jailhouse informants who testify that they have been privy to confessions of crimes is a contentious issue. Much of the scholarly literature available to date on wrongful conviction cases focuses on causes of insufficient and unreliable evidence obtained through different techniques and from different sources. Despite the high number of investigations into wrongful conviction cases, the subject of …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French

Christopher C. French

The Spirit Of Common Law And The Reform Of Canon Law, Ladislas M. Orsy, S.J.

The Catholic Lawyer

No abstract provided.

A Chance For Positive Change: Exploring The Legal Hurdles Putative Fathers Face In The 21st Century, Shamala Florant

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer

Joseph P. Bauer

This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar …