Law Commons^™

How Cosmopolitan Are International Law Professors?, Ryan Scoville, Milan Markovic

Faculty Scholarship

This Article offers an empirical answer to a question of interest among scholars of comparative international law: why do American views about international law appear at times to differ from those of other countries? The authors contend that part of the answer lies in legal education. Conducting a survey of the educational and professional backgrounds of nearly 150 legal academics, the authors reveal evidence that professors of international law in the United States often lack significant foreign legal experience, particularly outside of the West. Sociological research suggests that this tendency leads professors to teach international law from predominantly nationalistic and …

Assembled Products: The Key To More Effective Competition And Antitrust Oversight In Health Care, William M. Sage

Faculty Scholarship

This Article argues that recent calls for antitrust enforcement to protect health insurers from hospital and physician consolidation are incomplete. The principal obstacle to effective competition in health care is not that one or the other party has too much bargaining power, but that they have been buying and selling the wrong things. Vigorous antitrust enforcement will benefit health care consumers only if it accounts for the competitive distortions caused by the sector’s long history of government regulation. Because of regulation, what pass for products in health care are typically small process steps and isolated components that can be assigned …

Dna, Blue Bus, And Phase Changes, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

In ‘Exploring the Proof Paradoxes’, Mike Redmayne comprehensively surveyed the puzzles at the intersection of law and statistics, the most famous of which is the Blue Bus problem, which prohibits legal actors from ascribing liability purely on the basis of probabilistic evidence. DNA evidence, however, is a longstanding exception to Blue Bus. Like Blue Bus, DNA presents probabilistic evidence of identity. Unlike Blue Bus, DNA is widely accepted as legitimate, even when it stands alone as so-called ‘naked’ statistical evidence. Observers often explain such DNA exceptionalism in two ways: either that people break down in extreme cases, or relatedly, that …

Regulating Employment-Based Anything, Brendan S. Maher

Faculty Scholarship

Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. Reality is less complicated than advertised.

Governments often consider intervention if markets fail to make some socially desirable Good X — such as education, health care, home mortgages, or pensions, for example — sufficiently available. One obvious fix is for the government to provide the good itself. A less obvious intervention is for the government to regulate employment-based (EB) arrangements that provide Good X as a benefit to employees and …

Framework Of Surface And Ground Water In Oklahoma And Texas: Perspectives For Oil And Gas Development, Jessica Foster, Gabriel Eckstein

Faculty Scholarship

Chapter Extract:

Advancements in drilling techniques have broadened possibilities for producing hydrocarbons; but the innovations of unconventional drilling have exacerbated existing threats that the oil and gas industry have posed to water resources while creating new challenges. In today's industry, conventional methods of drilling for free-flowing crude oil are playing a secondary role to unconventional oil and gas production capable of bringing hydrocarbons trapped in tight or previously inaccessible geologic formations. Compared to conventional production, unconventional methods use much greater amounts of water in chemical-laden processes that can impact the availability and purity of freshwater resources in concentrated localities where …

Foreword: Innocent Until Proven Poor, Sara Zampierin

Faculty Scholarship

One of the core tenets of our criminal justice system is the presumption of innocence until proven guilty. As the title of the Symposium recognizes, we have allowed our justice system to ignore that presumption for people living in poverty in a variety of ways. Instead, it often inflicts additional and harsher punishment on individuals because of their poverty.

The Mouse That Trolled (Again), Robert Cook-Deegan, Saurabh Vishnubhakat, Tania Bubela

Faculty Scholarship

We welcome the opportunity to respond to the commentaries on our paper-The Mouse that Trolled-by Hardy, Sarnoff, and Cordova and Feldman. Their comments are academic criticism in the very best sense. We also take the opportunity to update on recent legal actions, which we had not predicted. This opportunity enriches our narrative history of the patenting of the APPswe mutation for early onset Alzheimer's disease, and we hope the continued saga is of interest.

A Tale Of Three Markets: Comparing The Renewable Energy Experiences Of California, Texas, And Germany, Felix Mormann, Dan Reicher, Victor Hanna

Faculty Scholarship

The Obama administration has repeatedly identified the large-scale build-out of clean, renewable energy infrastructure as a key priority of the United States. The President’s calls for a cleaner energy economy are often accompanied by references to other industrialized countries such as Germany, hailed by many as a leader in renewable energy deployment. Indeed, the share of renewables in Germany’s electricity generation mix is twice that of the United States, and the ambitious “Energiewende” commits the country to meeting 80% of its electricity needs with renewables by 2050. While some praise the German renewables experience as successful proof of concept, others …

Developing A Pedagogy Of Beneficiary Accountability In The Representation Of Social Justice Non-Profit Organizations, Amber Baylor, Daria Fisher Page

Faculty Scholarship

This article seeks to begin a conversation on how we teach the problem of beneficiary accountability in the representation of organizations with social justice missions: How do we guide students towards a fuller understanding of the moral responsibility to engage and respect the voices of the communities most directly affected by the non-profit organization’s mission? We look at the issue through the pedagogical lens of our experience supervising clinic students, deconstructing the problems of beneficiary accountability that students faced in the representation of two social justice organizations, surveying relevant legal scholarship on organizational representation and community lawyering, and considering alternative …

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

The Youngest Patent Validity Proceeding: Evaluating Post-Grant Review, Saurabh Vishnubhakat

Faculty Scholarship

Of the three major ex post patent validity challenge mechanisms that the 2011 Leahy-Smith America Invents Act put into place, the third is beginning to show signs of use. Post-grant review is an administrative proceeding of remarkable breadth as compared both to inter partes review and to the transition program for covered business method patents. Thus far, however, patent challengers have made very limited use of post-grant reviews: in the nearly three years since the procedure became available, the United States Patent and Trademark Office has received only about two dozen petitions for post-grant review. By contrast, the number of …

The Structured Writing Group: A Different Writing Center?, Brian N. Larson, Christopher Soper

Faculty Scholarship

This article describes the objectives, development, and some preliminary results of a program the authors led at the University of Minnesota Law School in academic year 2014-15. They wanted the “Structured Writing Group” (SWG) project to achieve some outcomes traditionally associated with writing centers: first, improving the student writing process by facilitating collaboration with a writing expert; and second, exposing students to additional audiences for their writing. We added a third goal of improving the experience and performance of multilingual students in the legal writing program.

The Hydrocarbon Industry’S Challenge To International Investment Law: A Critical Approach, Guillermo J. Garcia Sanchez

Faculty Scholarship

The research presented here challenges the contemporary view that the international investment regime has a “chilling effect” on host government policies. That critique errs in assuming that the effects of the modern bilateral investment treaties on decision-making within host governments have been uniform across states and economic sectors The main argument presented here is that in developing countries that depend on the oil and gas sectors, the international investment regime rarely deters host government rent-seeking behavior that can harm foreign investors.

In petro-dependent developing nations that have weak institutional capacity the survival of the government becomes tied to its ability …

Creating An International Prison, Mary Margaret Penrose

Faculty Scholarship

This Article asserts that a permanent international prison is a necessary, if not indispensable, component of any effective international criminal justice system. It begins by first addressing the historical approach to international sentencing. Next, it discusses the inadequacies of the status quo. Finally, it argues the time has come to construct a permanent international prison, rather than adhere to the ad hoc approach in dealing with international criminals and convicts.

The Rise And Fall Of Plausibility Pleading?, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint's allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a …

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

Lawyers And The Secret Welfare State, Milan Markovic

Faculty Scholarship

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers’ ubiquitous use of questionable practices in representing clients before benefit-granting government agencies, which enable thousands of individual to collect public benefits who may not qualify for them. This Article focuses in particular on lawyers’ handling of evidence of nondisability in Social Security Disability Insurance (SSDI) proceedings and participation in Medicaid planning. It may be possible that the legal profession’s central role in the distribution of public benefits is an obstacle to a fairer and more transparent social safety net.

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Kianga Mweba’s cellphone camera blurs into darkness broken by flashes of lights surrounding her car. From the audio of her cellphone recording, one can hear Kianga Mweba scream as she is pulled out of the car and tased. Mweba, arrested as she filmed the police detaining a man on the street, was charged with attempted assault on an officer. After recovering footage from her phone, her defense attorney produced the video as evidence against the criminal charges. Now the recording is a key piece of evidence in a lawsuit against the department. Mweba’s experience, captured by her cellphone camera, rallied …

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter K. Yu

Faculty Scholarship

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to …

The Role Of Creative Language In Addressing Political Asymmetries: The Israeli-Arab Water Agreements, Itay Fischhendler, Aaron T. Wolf, Gabriel E. Eckstein

Faculty Scholarship

International water agreements are often used as mechanisms for fostering and institutionalizing political cooperation. Yet, since water resources in many places are being driven to the edge of their natural limits, a number of international organizations have formulated legal principles and norms aimed at helping states resolve water disputes. While states have been urged to adopt these principles, it seems that they often embrace other less-traditional alternatives that may better address their own political needs. The aim of this study is to examine why states fail or decline to adopt several of the general principles of customary law formulated by …

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

The Competing Objectives Underlying The Protection Of Intangible Cultural Heritage, Peter K. Yu

Faculty Scholarship

One topic that has received considerable academic and policy attention concerns the key objectives underlying the establishment of this new framework. To help us develop a better and deeper understanding, this article outlines eight most widely documented objectives. While some of these objectives overlap or conflict with each other, others touch on issues that are of only marginal concern to some constituencies. By focusing on each objective in turn, this article aims to underscore the divergent, and at times competing, interests among the many stakeholders involved in the framework.

Although some readers may find the description of all eight underlying …

Drugs, Drugs Everywhere But Just Not For The Poor, Srividhya Ragavan

Faculty Scholarship

The objective for this article is to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals.

A Federal Certificate Of Rehabilitation Program: Providing Federal Ex-Offenders More Opportunity For Successful Reentry, Lisa A. Rich

Faculty Scholarship

The purpose of this Article is to propose a new federal certificate of rehabilitation program. The creation of such a program not only would help the thousands of federal offenders released back into their communities every year overcome employment barriers but would also serve as a model for states to use in addressing the need of their own burgeoning population of former offenders. In order to understand the magnitude of the problem, it is essential to understand the pool of offenders affected by their criminal history, the intent of the federal agencies to assist this disadvantaged group, and the barriers …

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Faculty Scholarship

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …

Brain Science And The Theory Of Juvenile Mens Rea, Jenny E. Carroll

Faculty Scholarship

The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders and a Fourth Amendment jurisprudence that contemplates an adolescent-based standard of reasonableness for the Miranda v. Arizona custody analysis. In the cases of Roper v. Simmons , Graham v. Florida , Miller v. Alabama , and …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Faculty Scholarship

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting …

Of Progressive Property And Public Debt, Christopher K. Odinet

Faculty Scholarship

Debt is property, and, because of this, property law has a lot to say about how debts are resolved. Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars. The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law. However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized. This is particularly true, as this Article …

The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu

Faculty Scholarship

This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.

Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the …