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Articles 1 - 30 of 102
Full-Text Articles in Law
The New European Choice-Of-Law Revolution, Ralf Michaels
The New European Choice-Of-Law Revolution, Ralf Michaels
Faculty Scholarship
Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with …
Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Faculty Scholarship
Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.
Systemic Risk, Steven L. Schwarcz
Systemic Risk, Steven L. Schwarcz
Faculty Scholarship
Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can access …
Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner
Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner
Faculty Scholarship
James M. Donovan’s article: Skating on Thin Intermediation: Can Libraries Survive?, 27 Legal Reference Services Q. 95 (no. 2-3, 2008) argues that librarians place more emphasis than they might on providing service to library users at a time when information seekers are relying less on intermediaries, and that over-emphasizing service to the detriment of other values diminishes the status of librarianship as a profession. The article presents two contrasting models of librarianship. This article discusses Donovan’s models and comments on the continuing importance of the service model to librarianship.
Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller
Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller
Faculty Scholarship
In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a …
Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman
Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman
Faculty Scholarship
Seeking to redress health disparities across income and race, many policy-makers mandate health insurance benefits, presuming that equalized benefits will help equalize use of beneficial health services. This paper tests that presumption by measuring health care use by a diverse population with comprehensive health insurance. Focusing on use of mental health care and pharmaceuticals, it finds that even when insurance benefits and access are constant, whites and those with high incomes consume more of these benefits than other people do. This suggests that privileged classes extract more health care services even when everyone pays equal premiums for equal insurance coverage.
Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman
Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman
Faculty Scholarship
Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles …
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer
Faculty Scholarship
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …
Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz
Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz
Faculty Scholarship
This symposium article examines how disclosure, the regulatory focus of the federal securities laws, has failed to achieve transparency in the sub-prime mortgage crisis and what this failure means for modern financial securities markets.
Prosecuting Aggression, Noah Weisbord
Prosecuting Aggression, Noah Weisbord
Faculty Scholarship
The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …
Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee
Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee
Faculty Scholarship
No abstract provided.
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
Executive Preemption, Ernest A. Young
Executive Preemption, Ernest A. Young
Faculty Scholarship
Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state …
To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz
To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz
Faculty Scholarship
In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Faculty Scholarship
Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …
Public And Private International Law : German Views On Global Issues, Ralf Michaels
Public And Private International Law : German Views On Global Issues, Ralf Michaels
Faculty Scholarship
No abstract provided.
Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller
Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller
Faculty Scholarship
Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. …
Conciliatory Institutions And Constitutional Process In Post-Conflict States, Donald L. Horowitz
Conciliatory Institutions And Constitutional Process In Post-Conflict States, Donald L. Horowitz
Faculty Scholarship
There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of the intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in …
Radiative Forcing: Climate Policy To Break The Logjam In Environmental Law, Jonathan B. Wiener
Radiative Forcing: Climate Policy To Break The Logjam In Environmental Law, Jonathan B. Wiener
Faculty Scholarship
This article recommends the key design elements of US climate law. Much past environmental law has suffered from four design problems: fragmentation, insensitivity to tradeoffs, rigid prescriptive commands, and mismatched scale. These are problems with the design of regulatory systems, not a rejection of the overall objective of environmental law to protect ecosystems and human health. These four design defects raised the costs, reduced the benefits, and increased the countervailing risks of many past environmental laws. The principal environmental laws successfully enacted since the 1990s, such as the acid rain trading program in the 1990 Clean Air Act (CAA) Amendments …
Territorial And Maritime Dispute Between Nicaragua And Honduras In The Caribbean Sea (Nicaragua V. Honduras), Coalter G. Lathrop
Territorial And Maritime Dispute Between Nicaragua And Honduras In The Caribbean Sea (Nicaragua V. Honduras), Coalter G. Lathrop
Faculty Scholarship
Report on Nicaragua v. Honduras, decided October 8, 2007 before the International Court of Justice.
Before You Log-On: Incorporating The Free Web In Your Legal Research Strategy, Lauren M. Collins
Before You Log-On: Incorporating The Free Web In Your Legal Research Strategy, Lauren M. Collins
Faculty Scholarship
No abstract provided.
Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi
Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi
Faculty Scholarship
No abstract provided.
Bond Defaults And The Dilemma Of The Indenture Trustee, Steven L. Schwarcz, Gregory M. Sergi
Bond Defaults And The Dilemma Of The Indenture Trustee, Steven L. Schwarcz, Gregory M. Sergi
Faculty Scholarship
The standard of care for indenture trustees after default is intolerably vague, generating cost and inefficiency in the public bond markets. Yet public bondholder governance is increasingly recognized as a critical component of the larger realm of corporate governance, and indeed more than eighty percent of capital market financing raised by U.S. corporations now occurs through public bond offerings. This article examines how that standard of care should be modified to make indenture trustees more effective.
Redesigning The European Court Of Human Rights: Embeddedness As A Deep Structural Principle Of The European Human Rights Regime, Laurence R. Helfer
Redesigning The European Court Of Human Rights: Embeddedness As A Deep Structural Principle Of The European Human Rights Regime, Laurence R. Helfer
Faculty Scholarship
The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over …
Intent, Presumptions, And Non-Self-Executing Treaties, Curtis A. Bradley
Intent, Presumptions, And Non-Self-Executing Treaties, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington
Faculty Scholarship
No abstract provided.
A Military Salute, Paul D. Carrington
Terror And The Law: The Limits Of Judicial Reasoning In The Post-9/11 World (Review Essay), Curtis A. Bradley
Terror And The Law: The Limits Of Judicial Reasoning In The Post-9/11 World (Review Essay), Curtis A. Bradley
Faculty Scholarship
reviewing, Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (2008)
The Upside Of Overbreadth, Samuel W. Buell
The Upside Of Overbreadth, Samuel W. Buell
Faculty Scholarship
Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors …
Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins
Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins
Faculty Scholarship
We find strong evidence that governing coalitions in Italy exercise significant negative agenda powers. First, governing parties have a roll rate that is nearly zero, and their roll rate is lower than opposition parties’ roll rates, which average about 20% on all final passage votes. Second, we find that, controlling for distance from the floor median, opposition parties have higher roll rates than government parties. These results strongly suggest that governing parties in Italy are able to control the legislative agenda to their benefit. We also document significantly higher opposition roll rates on decree-conversion bills and budget bills that on …