Law Commons^™

Sharing Sovereignty: Non-State Associations And The Limits Of State Power, Franklin G. Snyder

Faculty Scholarship

The subject of mediating associations and voluntary associations have received much attention in recent years. Both conservative and liberal scholars have invoked the idea that certain institutions that fall somewhere on the spectrum between the State and the Individual play a significant role in society and that they therefore ought to be protected and even cultivated. But much of this work proceeds from a flawed premise, and leads to an instrumental view of these non-State associations that requires that these institutions be justified based on their social utility. This view means that the utility of any given institution usually seems …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Law Student Admissions And Ethics - Rethinking Character And Fitness Inquiries, Susan Saab Fortney

Faculty Scholarship

This article expands on the use and recommended methods of including criminal background inquiries on law school applications. Part I of this article begins with an introduction to the ethics issues arising in connection with the admission of law students. Part II focuses on different purposes served by criminal background questions on the law school admission application, including screening applicants’ fitness to practice law. Part III considers the various ways law schools handle applicants’ nondisclosure and expands on the benefits of a modified amnesty program. Part IV explores how criminal background inquiries differ in depth, spanning from questions asking about …

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Faculty Scholarship

At such a crucial time in our history, major concerns exist regarding the viability of labor unions and the capability of employees to pursue racial justice in the workplace with any success. Continued improvement within both movements may depend upon finding a cohesive intersection between them. With the race and class divide affecting relations between organized labor and black workers (a dilemma which must be explored in more detail), this Article offers the thesis that there remains an area of opportunity for justice where interests of unions and black employees may coalesce: providing legal assistance to unrepresented black employees in …

Currents And Crosscurrents In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and …

The Origins Of Cctld Policymaking, Peter K. Yu

Faculty Scholarship

Extract:

A long time ago in a galaxy not so far away, there was a decentralized global network of computers. These computers shared information with each other regardless of how far apart they were and whether there was any direct line of communication between them. In the very beginning, this network was used exclusively by government and military agencies, educational and research institutions, government contractors, scientists, and technology specialists. Instead of the domain names we use today, such as “www. amazon.com,” users typed in numeric addresses, such as “123.45.67.89,” and, later, host names to send information to other computers.

This …

Intellectual Property At A Crossroads: Why History Matters, Peter K. Yu

Faculty Scholarship

Intellectual property is at a crossroads today. As the Commission on Intellectual Property Rights noted in its final report, “[o]ver the last twenty years or so there has been an unprecedented increase in the level, scope, territorial extent and role of IP right protection.” From the rapid privatization and commodification of information to the creation of property rights in bioengineered microorganisms and lifeforms, recent developments in the intellectual property field have sparked major controversies, calling into questions our values, worldviews, and the way society protects and incentivizes human creations and innovations. To grapple with these difficult questions, courts and commentators …

Chicken Little Lives: The Anticipated And Actual Effect Of Sarbanes-Oxley On Corporate Lawyers' Conduct, Susan Saab Fortney

Faculty Scholarship

This article addresses the controversy surrounding the Sarbanes-Oxley Act of 2002, which was seen by many lawyers as threatening the relationship between lawyers and their corporate clients. Part I of this article introduces the topic by providing a brief history of the increased government regulation and enforcement actions that forced lawyers to reexamine their role in representing their clients, beginning with the case of SEC v. National Student Marketing Corp. Part II reviews the organized bar's reaction to Sarbanes-Oxley. Part III focuses on law firms' response to the legislation. Part IV considers the views of individual corporate and securities lawyers …

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Faculty Scholarship

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie's wine illustration, I think it is fair to suggest that today's presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice …

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Immigr. & Nat'lity L. Rev., Huyen Pham

Faculty Scholarship

After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.

This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond …

Conflict Of Laws (2004), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2002, through November 1, 2003. The article excludes cases involving federalstate conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

False Conflicts And Faulty Analyses: Judicial Misuse Of Governmental Interests In The Second Restatement Of Conflict Of Laws, James P. George

Faculty Scholarship

The Second Restatement of Conflict of Laws has the irony of dominating the field while bewildering its users. The result is a set of choice-of-law decisions so lacking in uniformity that the Second Restatement's balancing test has become chimeric, taking on vastly different forms in different courts. Erratic applications may be partly due to its code-like function, which can require the application of two or more black letter sections, each with multiple analytical steps. Critics also point to the political and academic compromises that pervaded the American Law Institute's drafting process for this project, leading to ambiguity in some sections. …

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Fla. St. U. L. Rev., Huyen Pham

Faculty Scholarship

In the fanfare that surrounded the announcement of the National Security Entry-Exit Registration System,' Attorney General John Ashcroft's comment that the Department of Justice (DOJ) would ask state and local police to enforce both civil and criminal immigration laws seemed like an afterthought. State authorities, DOJ concluded, have "inherent authority" as sovereign entities to enforce these laws, though Ashcroft was careful to limit this invitation to local participation only to "our narrow anti-terrorism mission."

But to attorneys, law enforcement officers, and others working in the immigration field, Ashcroft's announcement was a bombshell. Not only was DOJ's announced position a reversal …

Between Mandate And Market: Contract Transition In The Shadow Of The International Order, Robert B. Ahdieh

Faculty Scholarship

Boilerplate in sovereign debt contracts issued in the United States has long dictated the unanimous consent of bondholders to any debt restructuring. This requirement persisted for decades, notwithstanding wide consensus that such unanimous action provisions increased transaction costs, produced inefficient delays in debt restructuring, enhanced the moral hazards of the sovereign debt market, and otherwise encouraged collective action failures. Yet the sovereign debt markets has recently made an about-face, replacing the unanimity requirement for debt restructuring with a less demanding provision for collective, or majority, action by creditors. Completed over the course of just a few months in 2003, this …

The Jekyll And Hyde Story Of International Trade: The Supreme Court In Phrma V. Walsh And The Trips Agreement, Srividhya Ragavan

Faculty Scholarship

The paper analyses the international impact of the approval by the United States Supreme Court to use indirect price control mechanisms to tackle public health and Medicaid issues. It traces similarities in policies implemented by the United States and those it opposed within developing nations. For example, the recent use by the developed nations of compulsory licensing and price control mechanisms, which they opposed as violating TRIPS when used by developing nations, underlines a poverty penalty suffered by developing nation signatories of TRIPS. In effect, TRIPS exempts developed nations from fulfilling obligations developing nations were forced to fulfill and thus …

Negotiation As One Among Many Tools, Jennifer Gerarda Brown, Marcia Caton Campbell, Jayne Seminare Docherty, Nancy A. Welsh

Faculty Scholarship

Article Extract

Even as this symposium examines the "canon" of negotiation, we think it is also important to consider negotiation's context. In many cases, negotiation cannot be the first or the only activity that takes place. To make significant progress in the resolution or management of some conflicts, other activities will have to precede or supplement negotiation. This can be particularly true in large-scale, multi-party public disputes.

Consider the following situation, one that might be unfolding even as you read this in any number of places in the United States. The setting is the state of Grace, a relatively small …

The Law Of Bargaining, Russell Korobkin, Michael Moffitt, Nancy A. Welsh

Faculty Scholarship

This brief essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, describes three categories of rules which comprise the law of bargaining. First, common law limitations govern virtually all negotiators: the doctrines of fraud and misrepresentation limit the extent to which negotiators may deceive, and the doctrine of duress limits the extent to which bargainers can use superior bargaining power to coerce agreement. Second, context-specific laws sometimes circumscribe negotiating behavior in specific settings when general rules are less restrictive. Third, the conduct of certain negotiators is constrained by professional or organizational regulations inapplicable to the general public. …

Perceptions Of Fairness In Negotiation, Nancy A. Welsh

Faculty Scholarship

In all of negotiation, there is no bigger trap than "fairness." This chapter from the Negotiator's Fieldbook explains why among multiple models of fairness, people tend to believe that the one that applies here is the one that happens to favor them. This often creates a bitter element in negotiation, as each party proceeds from the unexamined assumption that its standpoint is the truly fair one. For a negotiation to end well, it is imperative for both parties to assess the fairness of their own proposals from multiple points of view, not just their instinctive one – and to consider …

Legal Malpractice Insurance: Surviving The Perfect Storm, Susan Saab Fortney

Faculty Scholarship

This article serves as a practical guide to legal malpractice insurance. Part I introduces the topic of legal malpractice insurance with a brief overview of the changes that occurred in market conditions in 2000 and the subsequent effect on insurance premiums and coverage. Part II outlines the different types of insurance coverage that are available to legal professionals by describing common policy terms, exclusions, and conditions that affect coverage. Part III describes changes in law firms that may affect coverage. Part IV provides legal professionals with useful advice to consider when choosing an insurance policy. Part V reveals important factors …

Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh

Faculty Scholarship

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.

These interviews suggest that both before and after disputants …

Ancient Roman Munificence: The Development Of The Practice And Law Of Charity, William H. Byrnes Iv

Faculty Scholarship

This article traces Roman charity from its incipient meager beginnings during Rome’s infancy to the mature legal formula it assumed after intersecting with the Roman emperors and Christianity. During this evolution, charity went from being a haphazard and often accidental private event, to a broad undertaking of public, religious, and legal commitment. Charitable giving within ancient Rome was quite extensive and longstanding, with some obvious differences from the modern definition and practice of the activity.

The main differences can be broken into four key aspects. First, as regards the republican period, Roman charity was invariably given with either political or …

The Hand That Rocks The Cradle: How Children's Literature Reflects Motherhood, Identity, And International Adoption, Susan Ayres

Faculty Scholarship

Children's books are "a source of law" for children because "[children] are constantly trying to make sense of what is going on around them, and although literature itself is only a constituent of life experience, as a constituent it is potentially of the greatest importance." As adults and lawyers, we can also read children's books as a source of law because they reflect patriarchal ideologies about the family and stigma surrounding adoption. Like other myths, children's books tell stories about origins and constitute not only subjects but are also the foundation of law by reflecting legal norms and projecting legal …

International Adoption & International Comity: When Is Adoption Repugnant, Malinda L. Seymore

Faculty Scholarship

Do judges have the authority to recognize decrees of foreign adoption? Since 1989, over 167,000 parents of children adopted in other countries have needed to know the answer to that question. Adoption creates a parent-child relationship that is not legally different from a biologically created parent-child relationship. Parents are entitled to the same rights and owe the same obligations to adopted children as they do to biological children, and adopted children are entitled to the same benefits as biological children. Adopted children are entitled to the financial support of their parents to the same extent as biological children. Thus, in …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

The Escalating Copyright Wars, Peter K. Yu

Faculty Scholarship

Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based …

A "Patent" Restriction On Research & Development: Infringers Or Innovators?, Srividhya Ragavan

Faculty Scholarship

The Trade Related Aspects of Intellectual Property Rights ("TRIPS") requires developing nations to harmonize patent regimes as a means to achieve stronger industrial growth. Countries, however, need to adopt effective patent procedures in order to successfully institute a patent regime. In spite of this, international treaties like TRIPS do not properly assist developing nations in establishing appropriate procedural mechanisms capable of complimenting a sophisticated patent regime. Consequently, developing nations may embrace ineffective patent procedures that can eventually further limit industrial growth despite establishing a TRIPS compliant patent regime. The paper uses India as a case study to demonstrate the detriments …

Protection Of Traditional Knowledge, Srividhya Ragavan

Srividhya Ragavan

Originally published in Minnesota Intellectual Property Review 2.2 (2001).

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Faculty Scholarship

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religiousf aith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughyul contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Settlement Advocacy, Kay Elkins-Elliott, Frank W. Elliott

Faculty Scholarship

For many years, law schools have based most of their "practical" instruction on the adversary system's last choice: trials and appeals. First year students are taught how to write an appellate brief and how to make an appellant argument. Maybe this is good, since the odds are that any given student will never again write a brief or make such an argument. After the first year of law school, students are swept into trial advocacy courses, mock trial competitions, and appellate advocacy competitions: learning how to influence the minds of jurors and appellate judges. We all know that these activities …

Birth After Death: Perpetuities And The New Reproductive Technologies, Sharona Hoffman, Andrew P. Morriss

Faculty Scholarship

The Rule Against Perpetuities ("Rule" or "RAP") has long terrorized law students and lawyers alike: "no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Despite this deceptively simple formulation, the Rule's complexities have bedeviled generations of property students and practitioners on both sides of the Atlantic. Reformers argue that the Rule's complexity is unnecessary to achieve the Rule's objectives and turns it into merely a malpractice trap.

Despite this "reign of terror," the Rule continues to apply in various forms in most …