Law Commons^™

Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott

Book Chapters

Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost …

Wandering Into Psychology And Law, Phoebe C. Ellsworth

Book Chapters

Some people have a passion for a single topic that motivates and engages them for life. I’m not one of them. I can get interested in almost anything, and my career looks more like a random walk through a candy store than a single-minded pursuit of a goal. I am both a theorist and researcher in the field of emotion and a contributor to the application of psychology to legal issues. In this piece I will focus on my work in psychology and law. A review of my research on emotion can be found in Ellsworth and Scherer (2003).

Happily Ever After, Phoebe C. Ellsworth

Book Chapters

I have been lucky in my upbringing and education, and especially in having advisors who let me do what I wanted to even when they didn’t think it was a good idea. This allowed me to have a deeply rewarding career devoted to two entirely different topics – basic theory and research on emotion, and applied theory and research in psychology and law. My career spanned the period from when women were considered unsuitable for scientific or academic work through the rise of feminism, so although I faced obstacles, the culture was changing quickly enough that my unusual choices soon …

International Law Rules On Treaty Interpretation, Steven R. Ratner

Book Chapters

International law is central to the interpretation of both of the Brexit-related treaties. The TCA explicitly requires the parties and any dispute settlement body to interpret it according to the rules of interpretation of public international law, notably the 1969 Vienna Convention on the Law of Treaties (VCLT). The WA, and thus the Protocol, by specifying that any of its provisions concerning Union law or concepts must be interpreted in accordance with EU law (including the case law of the CJEU), implies that its many provisions not concerning EU law will need to be interpreted by the default rules of …

Plant Closings And Reductions In Force, Margaret Hannon

Book Chapters

This chapter examines the effect of federal discrimination laws on permanent layoffs caused by plant closings and reductions in force (RIFs) and discusses the federal Worker Adjustment and Retraining Notification Act (WARN Act), Pub.L. No. 100-379, 102 Stat. 890 (1988), and the Illinois Worker Adjustment and Retraining Notification Act (Illinois WARN Act), 820 ILCS 65/1, et seq. This chapter examines cases in which RIFs have been challenged as violating an employee’s rights under federal age discrimination law, the legal standards applied by the courts in reviewing such challenges, and some particular problems that have arisen in the context of company …

Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman

Book Chapters

This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

Of Rights And Regulation, Stephen W. Sawyer, William J. Novak

Book Chapters

This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …

Susan Reynolds, John G. H. Hudson, David L. D'Avray

Book Chapters

Susan Reynolds was elected to the British Academy after she had worked out a new framework for the medieval history of England, France, Germany and northern Italy. The breakthrough book was her Kingdoms and Communities in Western Europe 900–1300 (1984); it brought all levels of society together in a synthesis, and was a stunning achievement. Her subsequent Fiefs and Vassals (Oxford, 1994) left a generation reluctant even to use the word ‘feudalism’, and other important contributions continued until not long before she died. In 2001 she was honoured with a Festschrift entitled Law, Laity and Solidarities.

Women, Peace, And Security: A Human Rights Agenda?, Christine M. Chinkin

Book Chapters

The Women, Peace and Security (WPS) agenda emanates from the ground-breaking Security Council Resolution 1325 (2000) which centres upon bringing women’s experiences of armed conflict into decision and policymaking in the exercise of the Council’s primary responsibility for the maintenance of international peace and security. The chapter asks whether, despite its location within the Security Council, WPS can be understood as an international human rights agenda as envisaged by women activists who lobbied for the adoption of Resolution 1325. It traces the antecedents of WPS through women’s peace and human rights activism throughout the twentieth century. It examines the texts …

Shareholder Engagement In The United States, Vikramaditya S. Khanna

Book Chapters

Shareholder voting and engagement in the US have undergone substantial changes over the last 50 years. They have moved from being relatively sleepy issues to those that trigger insomnia in even the most hardened executives. The changes in the ownership structure of US publicly traded firms are probably the most important reason for the shift, but so too are rule changes that have facilitated greater shareholder activism. This chapter explores these developments while describing the rules of the road for shareholder voting in the US by focusing on Delaware jurisprudence and changes in US federal securities regulations. It also examines …

Arguing About The Jus Ad Bellum, Monica Hakimi

Book Chapters

In January 2020, the United States conducted a targeted airstrike against Iranian General Qasem Soleimani, who at the time was on official business in Iraq. Soleimani had commanded an Iranian military unit that supported armed groups throughout the region, including in Iraq. He likely was involved, directly or indirectly, in countless incidents of low-level violence against the United States and its allies. Nevertheless, the US attack on him was especially brazen and seemed to up the ante. It raised the possibility, or at least created some chatter, that the two countries were heading toward all-out war.

Most analysts who assessed …

Taxation And Business: The Human Rights Dimension Of Corporate Tax Practices, Reuven S. Avi-Yonah

Book Chapters

The response of both developed and developing countries to global developments has been first, to shift the tax burden from (mobile) capital to (less mobile) labour, and second, when further increased taxation of labour becomes politically and economically difficult, to cut government services. Thus, globalization and tax competition lead to a fiscal crisis for countries that wish to continue to provide those government services to their citizens, at the same time that demographic factors and increased income inequality, job insecurity and income volatility that result from globalization render such services more necessary. This chapter argues that if government service programs …

Preventing Child Maltreatment Through Medical-Legal Partnership, Debra Chopp

Book Chapters

There has been significant attention in recent years to health care delivery models that address social determinants of health. One such model is medical-legal partnership (MLP). MLPs join health care providers with lawyers to address health-harming legal needs in the lives of vulnerable patients. Research on MLPs has demonstrated their success in reducing stress and increasing health and well-being in the patients they serve and in their families. This chapter explores the possibility of using MLP as a tool to prevent child maltreatment.

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Book Chapters

This article addresses the general question of truthfulness in the process of negotiation, as that question is faced in Rule 4.2 of the Model Rules of Professional Conduct. The obligation to behave truthfully in negotiation is embodied in the requirement of Rule 4.2(a) that directs the lawyer to “be fair in dealing with other participants.” The article then presents five cases which show that one does not and cannot intend that a negotiator be “truthful” in the broadest sense of that term. It would be unfortunate, therefore, for the rule that requires “fairness” to be interpreted to require that a …

The Rights Of Refugees Under International Law, James C. Hathaway

Book Chapters

The universal rights of refugees are today derived from two primary sources - general standards of international human rights law, and the Refugee Convention itself. As the analysis in Chapter 1 makes clear, the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most …

Designing Legal Experiences, Maximilian A. Bulinski, J.J. Prescott

Book Chapters

Technological advancements are improving how courts operate by changing the way they handle proceedings and interact with litigants. Court Innovations is a socially minded software startup that enables citizens, law enforcement, and courts to resolve legal matters through Matterhorn, an online communication and dispute resolution platform. Matterhorn was conceived at the University of Michigan Law School and successfully piloted in two Michigan district courts beginning in 2014. The platform now operates in over 40 courts and in at least eight states, and it has facilitated the resolution of more than 40,000 cases to date. These numbers will continue to grow …

Due Diligence In International Tax Law, Reuven S. Avi-Yonah, Gianluca Mazzoni

Book Chapters

This chapter describes how the due diligence standard was developed in international tax law before 2008, and then how the standard was greatly modified after the financial crisis, the enactment of the Foreign Account Tax Compliance Act of 2010 (FATCA), and the subsequent development of the Common Reporting Standards (CRS). The chapter outlines how the due diligence concept is applied to private actors, especially financial institutions, to prevent tax evasion. It ends with some conclusions including that while due diligence in international tax law is currently embodied in a specific set of rules, there remains an absence of an overarching …

Clerking For Roger J. Traynor, Roland E. Brandel, James E. Krier

Book Chapters

Justice Roger J. Traynor was born in Utah in 19001 the son of a miner and drayman. He left after high school to undertake undergraduate and graduate studies at the University of California, Berkeley, eventually earning (simultaneously) a Ph.D. in political science and a law degree from Boalt Hall, the university's law school. He practiced law for just a few months, then returned to the university to teach in its political science department. A year later, in 19301 he joined the law faculty, where he worked until his appointment to the California Supreme Court in 1940. He became chief justice …

Multinational Activity In The Modern World, James R. Hines Jr., Fritz C. Foley, Raymond J. Malatoni Jr., David Wessel

Book Chapters

Multinational corporations are the global goliaths of modern times. These entities collectively are responsible for large portions of world production, employment, investment, international trade, research, and innovation. Although their economic impact is most pronounced in high-income countries, where their activities have been concentrated historically, their reach increasingly extends to every corner of the world. Decisions made by these firms affect not only those who work for them, buy from them, do business with them, and compete with them, but also communities and countries in which they are located. As a result, their operations and activities are subjects of considerable interest …

Principles For Policymakers, James R. Hines Jr.

Book Chapters

Multinational corporations are global goliaths, but they have not conquered the world, nor are they responsible for every economic ill, as is sometimes alleged. These firms contribute to global prosperity by improving productivity and efficiency, innovating, and creating jobs-mostly good jobs-in both home and host countries. Governments lavish attention on multinational corporations, seeking the good that accompanies their investments even as policymakers worry about the influence multinational firms have on the local environment, social conditions, and politics. In this regard, governments face the tradeoffs that commonly afflict economic policymaking. Efforts to control the actions of multinational firms typically come at …

Globalization, Tax Competition And The Fiscal Crisis Of The Welfare State: A Twentieth Anniversary Retrospective, Reuven S. Avi-Yonah

Book Chapters

I first met David Rosenbloom in 1993. I had just been hired lo leach international tax at Harvard Law School, and was replacing David, who had taught there for many years. I felt a bit apprehensive approaching such a giant in the field, especially since I actually had little experience in international tax and none in lax treaties. But David was extraordinarily generous. Not only did he give me his materials (some of which made it into my casebook, now co-authored with Yariv Brauner and David's student Diane Ring) but he also agreed to come teach treaties as a guest …

Alternative Trading Platforms In The United States: Incentives For Innovation In The Us Stock Market, Gabriel V. Rauterberg

Book Chapters

Is something wrong with the structure of our stock market? Recent scholarship faults the equity market for its lack of innovation. In particular, commentators stringently criticize the continuous nature of modern trading for baking in a wasteful arms race for speed among high-frequency traders. Under their current structure, stock exchanges process incoming instructions to trade in the order they arrive and as quickly as possible, which means in millionths of a second or less. The result is a race for technological speed because market participants can earn profits from being the first to trade on new information, even when that …

Persuasion About/Without International Law: The Case Of Cybersecurity Norms, Steven R. Ratner

Book Chapters

International law on cybersecurity is characterized by at best a thin consensus on the existence of rules, their meaning, and the desirability and content of new rules. This legal landscape results in a unique pattern of argumentation and persuasion by states and non-state actors both in advocating for a regulatory scheme for cyber activity and in reacting to malicious cyber acts. By examining argumentation in the absence of a generally agreed legal framework, this chapter seeks to provide new insights into the motivations for and effects of international legal argumentation in shaping debates and behavior. After describing the legal landscape …

From The Spectacular To The Everyday: International Law, Violence And The Agenda For Women, Peace And Security, Christine M. Chinkin

Book Chapters

This article looks at the conceptions of violence within WPS and thus within these diverse international legal regimes as they relate to women and girls. It first examines the regulation of inter-state violence, both legal recourse to the use of force and constraints upon the means and methods of warfare. It then outlines how state obligations to prevent and punish violence against women were brought into human rights law in the early 1990s, primarily by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee). The WPS resolutions are then summarised, focusing on provisions for the prevention of …

Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll

Book Chapters

According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …

Christianity And Antitrust, Kenneth G. Elzinga, Daniel Crane

Book Chapters

The purpose of this chapter is to consider whether the Christian faith has a nexus with the institution of antitrust. It turns out it doesn’t – and it does. For example, Christianity cannot explain why the Herfindahl–Hirschman Index is superior to the four-firm concentration ratio as a measure of industry concentration. Economics can. On the other hand, economics cannot explain why the per se rule against price-fixing is morally appropriate. The Bible can.

Offenders And Sorn Laws, Amanda Agan, J.J. Prescott

Book Chapters

Chapter 7 describes what we know about the effects of SORN laws on criminal behavior. A coherent story emerges from this review: there is virtually no evidence that SORN laws reduce recidivism or otherwise increase public safety. The chapter first delineates the various ways registration and notification alter the legal environment not only for registrants but also for nonregistrants, the public, and law enforcement. There are many channels through which SORN laws might impact the frequency of sex offenses, including some that would produce an increase in overall offending. The chapter assesses these possibilities in light of a large body …

A New Approach To Executory Contracts, John A.E. Pottow

Book Chapters

Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under section 365 of the Bankruptcy Code. The case law is "hopelessly convoluted" and a "bramble-filled thicket." While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law and commentary, all would agree Jay Westbrook has been at the modern vanguard of this Sisyphean task. (1 assign Westbrook to the "modern" forefront, thereby relegating Vern Countryman, whose legacy in this domain rightly persists, to the annals of history, choosing as my perhaps arbitrary dividing line the adoption …

Member States' Due Diligence Obligations To Supervise International Organizations, Kristina Daugirdas

Book Chapters

There are two reasons to consider member states’ obligations to supervise international organisations as a distinct category of due diligence obligations. First, due diligence obligations typically require states to regulate third parties in some way. But it is harder for states to regulate international organisations than other private actors because international law protects the autonomy of international organisations. Second, such due diligence obligations merit attention because they may compensate for the dearth of mechanisms to hold international organisations accountable when they cause harm. This chapter canvasses member states’ existing obligations vis-à-vis international organisations, and argues in particular that the International …