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The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill Jan 2002

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures ...


Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg Jan 2002

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization ("WIPO") or through the World Trade Organization ("WTO").

There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be ...


Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West Jan 2002

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual ...


The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill Jan 2002

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference ...


Incomplete Compensation For Takings, Thomas W. Merrill Jan 2002

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is ...


Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West Jan 2002

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind ...


Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg Jan 2002

Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

Over the last several years, copyrighted works have come to account for a healthy portion of our GNP, and an even more substantial share of U.S. exports. Nonetheless, copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators ...