Law Commons^™

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia

Journal Articles

Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States's constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts.

The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos M. Vizquez, and …

Regulating The Invisible: The Case Of Over-The-Counter Derivatives, Colleen M. Baker

Journal Articles

In this Article, I focus on the regulation of the over-the-counter (OTC) derivative markets. I argue that current reform proposals and draft legislation fall short of constructing the linked domestic and international frameworks needed to successfully regulate the OTC derivative markets. The purpose of my Article is to propose and defend such a framework. Because of the inseparability of the domestic and international aspects of this issue, I argue that in addition to increased prudential supervision and regulation, the regulation of OTC derivative markets requires interwoven domestic and international systems for regulatory cooperation. This recommendation has two parts. First, Congress …

Catholic Schools, Urban Neighborhoods, And Education Reform, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

More than 1,600 Catholic elementary and secondary schools have closed or been consolidated during the last two decades. The Archdiocese of Chicago alone (the subject of our study) has closed 148 schools since 1984. Primarily because urban Catholic schools have a strong track record of educating disadvantaged children who do not, generally, fare well in public schools, these school closures have prompted concern in education policy circles. While we are inclined to agree that Catholic school closures contribute to a broader educational crisis, this paper shies away from debates about educational outcomes. Rather than focusing on the work done inside …

The Choice Of Law Against Terrorism, Mary Ellen O'Connell

Journal Articles

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

Irrelevent Confusion, Mark Mckenna, Mark A. Lemley

Journal Articles

Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.

As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic …

Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson

Journal Articles

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best …

Governing? Gentrifying? Seceding? Real-Time Answers To Questions About Business Improvement Districts, Nicole Stelle Garnett

Journal Articles

Business improvement districts (BIDs) have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new sublocal, quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether …

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Twenty-Eight Words: Enforcing Corporate Fiduciary Duties Through Criminal Prosecution Of Honest Services Fraud, Lisa L. Casey

Journal Articles

This article examines the federal government's growing use of 18 U.S.C. § 1346 to prosecute public company executives for breaching their fiduciary duties. Section 1346 is a controversial but under-examined statute making it a felony to engage in a scheme "to deprive another of the intangible right of honest services." Although enacted by Congress over twenty years ago, the Supreme Court repeatedly declined to review the statute, until now. In 2009, Justice Antonin Scalia pointed to the numerous interpretive questions dividing the federal appellate courts and proclaimed that it was "quite irresponsible" to let the "current chaos prevail." Since then, …

Nato At Sixty: America Between Law And War, Mary Ellen O'Connell

Journal Articles

NATO was founded to counter the Soviet Union and the Warsaw Treaty Organization. Both have been gone for over twenty years. So why is NATO still here? Part of the explanation may lie in Americans' strong belief in the efficacy of military force. NATO remains associated in Americans' minds with the greatest time of U.S. military power. Yet, the United States also has a strong commitment to the rule of law. The country appears overdue for a return to this other commitment. We should not be surprised to soon see the United States promoting international law again-and that could mean …

Anna Nicole Smith Goes Shopping: The New Forum-Shopping Problem In Bankruptcy, G. Marcus Cole, Todd J. Zywicki

Journal Articles

In the United States, relations between debtors and their creditors are governed by two distinct legal regimes. For the overwhelming majority of credit relationships, state law of contract, property, tort, and consumer protection set up the framework within which the debtor-creditor relationship is established, functions, and in the end, is dissolved. In a smaller but significant number of these relationships, a different forum orchestrates the end of these relationships, namely, federal bankruptcy court. These two distinct forums for debtor-creditor relations coexist side by side, with some disputes moving over time from one forum to the other. As with any system …

Resolving Cases On The Merits, Jay Tidmarsh

Journal Articles

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett

Journal Articles

It has been more than two years since the announcement that our then-recently-elected President, Barack Obama, would be the featured speaker—and would receive an honorary degree—at the University of Notre Dame's graduation ceremony. No footnotes or citations are necessary for the report that the University's decision was controversial or the observation that the choice was both criticized and celebrated by students, faculty, alumni, political commentators, lay Catholics, and Church leaders.

In a USA Today opinion piece published a few days before the graduation ceremony, I suggested that the "angst at Notre Dame" was "not about what should be said at …

Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor

Journal Articles

This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …

Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor

Journal Articles

The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited …

In Memoriam: Professor Michael Goldsmith, G. Robert Blakey

Journal Articles

Michael Goldsmith, the Woodruff J. Deem Professor of Law, Brigham Young University, was more than a protege. Over the years, he became a close colleague and a true and long-lasting friend.

Mike was unlucky to fall from the ravishes of ALS. Yet he was lucky in life. In the end, people are all that count, not scholarship, public service, or fame. On this count, he was uncommonly lucky.

Michael Goldsmith: Requiescat in Pace.

The Order-Maintenance Agenda As Land Use Policy, Nicole Stelle Garnett

Journal Articles

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later …

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Journal Articles

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Journal Articles

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Responsibility To Peace: A Critique Of R2p, Mary Ellen O'Connell

Journal Articles

The NATO bombing of Yugoslavia in 1999 led to the doctrine of R2P, which envisages the use of force in defence of human rights. But as the Kosovo conflict demonstrates, nothing is more destructive of human rights than war. The protection and promotion of human rights should be done through lawful and non-lethal means. This essay argues that citizens and states have a responsibility to peace as much as to human rights because human rights can only flourish in a condition of peace. This essay seeks to restore peace to its proper place in the discussion of international politics and …

At The Brink Of Free Agency: Creating The Foundation For The Messersmith-Mcnally Decision - 1968-1975, Edmund P. Edmonds

Journal Articles

"One of the most dramatic periods in baseball’s long history of labor relations occurred from 1968 through 1975. The Major League Baseball Players Association negotiated baseball’s first Basic Agreement in 1968 without the benefit of any leverage that could alter most of Organized Baseball’s long practices that controlled the players’ mobility and wages. In 1975, however, the union won an arbitration panel hearing that determined that pitchers Dave McNally and Andy Messersmith were free agents after playing one full season under the renewed option year of their contracts and filing a grievance under the newly adopted arbitration process. This stunning …

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Marriage And Mulieris Dignitatem, John J. Coughlin

Journal Articles

This article considers the theology and canon law of marriage in light of 'Mulieris Dignitatem'. The article was a talk given at Catholic University of America on this twentieth anniversary of Pope John Paul II's Apostolic Letter. One of the document's central themes is the universal call to holiness lived out through sacramental marriage or virginity. In the first part of the article, I discuss Saint Augustine's teaching on the relation between marriage and virginity. In the second part, I mention several prominent features of 'Mulieris Dignitatem', including the complementarity of marriage and virginity, the personalist interpretation of Ephesians 5, …

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Journal Articles

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Journal Articles

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient …

Responses To The Ten Questions, Mary Ellen O'Connell

Journal Articles

The Journal of the National Security Forum (JNSF) Board of Editors posed ten questions on national security to a group of national-security law experts. Professor Mary Ellen O’Connell’s answers to the ten questions are presented.

Substantive Canons And Faithful Agency, Amy Coney Barrett

Journal Articles

Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons …

The Role Of Physical Presence In The Taxation Of Cross-Border Personal Services, Michael Kirsch

Journal Articles

This Article addresses the role of physical presence in the taxation of cross-border personal services. For much of the last century, both U.S. internal law and bilateral treaties have used the service provider’s physical location as the touchstone for determining international taxing jurisdiction. Modern developments - in particular, the significant advances in global communication technology and the increasing mobility of individuals - raise important questions regarding the continued viability of this physical presence standard.

These modern developments have already facilitated the offshoring of numerous types of personal services, such as radiology, accounting, and legal services. As communication technology improves, the …

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

Journal Articles

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and …