Law Commons^™

Unique Proposals For Limiting Legal Liability And Encouraging Adherence To Ventilator Allocation Guidelines In An Influenza Pandemic, Valerie Gutmann Koch

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No abstract provided.

Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro

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Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from …

The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen

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This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With …

Fisher's Fishing Expedition, Vinay Harpalani

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This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of 'critical mass' and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions.

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher J. Buccafusco, Christopher Jon Sprigman, Zachary C. Burns

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Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

The Supreme Court's Theory Of The Fund, William Birdthistle

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Just as the firm has long served as the foundational molecule of the U.S. capitalist economy, theories of the firm have for more than a century dominated legal and economic discourse. Ever since Ronald Coase published The Nature of the Firm in 1937 and asked why firms should exist in an efficient market, classicists and neoclassicists have competed to develop theories — predominantly managerialist and contractual — that best explain the structure and behavior of business organizations.

The investment fund, by contrast, has languished at the margins of corporate theory, relegated as simply a minor, if somewhat curious, example of …

To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman

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In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and …

The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin

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The proposed Arbitration Fairness Act (AFA) would prohibit all pre-dispute agreements to arbitrate in employment, consumer and franchise contracts. Although changes in the ideological composition of Congress mean that the AFA has little chance of enactment in the foreseeable future, mini-AFAs have been enacted banning pre-dispute arbitration agreements as applied to sexual harassment claims by employees of defense contractors and whistleblower claims by employees in the securities and commodities industries. This article charts a middle ground between those who would ban pre-dispute arbitration mandates in employment contracts completely and those who would leave them unregulated. After surveying the empirical evidence …

Becoming The Fifth Branch, William Birdthistle, M. Todd Henderson

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Observers of our federal republic have long acknowledged that a fourth branch of government comprising administrative agencies has arisen to join the original three established by the Constitution. In this article, we focus our attention on the emergence of perhaps yet another, comprising financial self-regulatory organizations. In the late eighteenth century, long before the creation of state and federal securities authorities, the financial industry created its own self-regulatory organizations. These private institutions then coexisted with the public authorities for much of the past century in a complementary array of informal and formal policing mechanisms. That equilibrium, however, appears to be …

United States Flood Control Policy: The Incomplete Transition From The Illusion Of Total Protection To Risk Management, A. Dan Tarlock

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Until the mid-twentieth century, the story of modern flood control was the transition from adaptation to the inevitable to an expectation that government would provide maximum flood prevention and generous post-disaster relief for floodplain dwellers. For the last sixty years or so, the story has been the growing recognition, especially as the understanding of climate change has increased, that the goal of maximum protection is unobtainable because flood damage is an inevitable risk that can only be managed, but never totally avoided. Thus, we are now making the transition to the idea that we must manage floodplains through a combination …

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

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Crowdsourcing Indie Movies Henry H. Perritt, Jr. Abstract Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas

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The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the Laval quartet will have to …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

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Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

Appellate Courts As First Responders: The Constitutionality And Propriety Of Appellate Courts' Resolving Issues In The First Instance, 87 Notre Dame Law Review 1521 (2012)., Joan E. Steinman

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No abstract provided.

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

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In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

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This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

It's Complicated: Privacy And Domestic Violence, Kimberly D. Bailey

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This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has both positive and negative aspects, and this Article examines the value that more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring that they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims’ lives that limitations are needed to prevent the threat of state abuse. These …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

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This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

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The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

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Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

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This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

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Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Promises And Perils Of New Global Governance: A Case Of The G20 (With C. Kelly), Sungjoon Cho, Claire R. Kelly

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In the wake of the 2008 financial crisis, a new global governance structure emerged. During and subsequent to the crisis, the G20 arose as a coordinating executive among international governance institutions. It set policy agendas, prioritized initiatives and, working through the Financial Stability Board, drew other governance institutions and networks such as the International Monetary Fund, the Basel Committee on Banking Supervision, the Organization of Economic Cooperation and Development, the World Trade Organization, the International Association of Insurance Supervisors and the International Organization of Securities Commissions to set standards, monitor enforcement and compliance, and aid recovery. Its authority cross-cuts regimes …

Beyond Rationality: A Sociological Construction Of The World Trade Organization, Sungjoon Cho

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This Article critiques the rational-institutional analysis of the World Trade Organization (WTO) that Gregory Shaffer and Joel Trachtman present, and proposes an alternative “sociological” framework. The Article notes that rationalism, although a powerful heuristic of the WTO’s operation, inevitably overlooks the WTO’s rich social dimensions and thus leaves behind several theoretical blind spots, such as the lack of any satisfying explanation on institutional evolution and development concerns. In an attempt to address these blind spots, the Article offers a sociological-communitarian paradigm that emphasizes cognitive elements, such as ideas, norms, and discourse, to explain the social dynamic within the WTO. Under …

Regionalization, Development And Competition Law: Exploring The Political Dimension, David J. Gerber

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In discussions of the regionalization of competition law, the political dimension often leads a shadowy existence. Regionalization tends to be presented with a hint of a halo around it. States are presented as acting for a shared policy objective intended to benefit all, and political issues often sit uncomfortably with that image. This is particularly true when regionalization involves ‘developing countries’. Here there is often a further level of ‘common good’ discourse. Regionalization is here portrayed not only as a communal experience and goal, but also as one designed to reduce poverty and aid economic development. Where regionalization involves competition …

Diversity Within Racial Groups And The Constitutionality Of Race Conscious Admissions, Vinay Harpalani

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This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea …

Can The Ceo Learn From The Condemned? The Application Of Capital Mitigation Strategies To White Collar Cases, Todd Haugh

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Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions—mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, …

Incentivizing The Utilization Of Pharmacogenomics In Drug Development, Valerie Gutmann Koch

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Pharmacogenomics, the study and development of compounds according to how an individual’s genes affects the body’s response to drugs, holds enormous promise for increasing the safety and efficiency of drug development while decreasing adverse reactions and the trial-and-error nature of drug prescription. However, pharmacogenomics may not be the panacea for all development and prescription problems. This article explores some of the obstacles to pharmacogenomic advancement including industry reluctance to pursue research because of potentially prohibitive costs associated with developing products and legal liability concerns. The implications pharmacogenomics has for drug research and development as well as various areas of law …

Pgtandme: Social Networking-Based Genetic Testing And The Evolving Research Model, Valerie Gutmann Koch

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The opportunity to use extensive genetic data, personal information, and family medical history for research purposes may be naturally appealing to the personal genetic testing (PGT) industry, which is already coupling its direct-to-consumer (DTC) products with social networking technologies, as well as to potential industry or institutional partners. This article evaluates the transformation in research that the hybrid of PGT and social networking will bring about, and – highlighting the challenges associated with a new paradigm of “patient-driven” genomic research – focuses on the consequences of shifting the structure, locus, timing, and scope of research through genetic crowd-sourcing. This article …

Digital Originality, Edward Lee

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This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.