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Articles 61 - 90 of 465
Full-Text Articles in Law
Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan
Universities: The Fallen Angels Of Bayh-Dole?, Rebecca S. Eisenberg, Robert Cook-Deegan
Articles
The Bayh-Dole Act of 1980 established a new default rule that allowed nonprofit organizations and small businesses to own, as a routine matter, patents on inventions resulting from research sponsored by the federal government. Although universities helped get the Bayh-Dole Act through Congress, the primary goal, as reflected in the recitals at the beginning of the new statute, was not to benefit universities but to promote the commercial development and utilization of federally funded inventions. In the years since the passage of the Bayh-Dole Act, universities seem to have lost sight of this distinction. Their behavior as patent seekers, patent …
Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A.E. Pottow
Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A.E. Pottow
Articles
In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee's administration of a debtor's estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of "bankruptcy M&A." My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …
Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas
Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas
Articles
The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post …
Perils Of Tax Reform, James R. Hines Jr.
Perils Of Tax Reform, James R. Hines Jr.
Articles
Tax reforms dangle possibilities of improving the tax system, but are fraught with perils that are evident from the 2017 U.S. experience and caution against frequent reforms of its ilk. The first peril is that reforms containing tax provisions selected simply on the basis of their projected revenue contributions will produce less tax revenue than anticipated, illustrative calculations suggesting shortfalls of roughly 8–16 percent. The second peril is that reforms will not advance the objectives of efficiency and tax equity to the extent that they include provisions intended to influence future tax legislation or government spending. The third peril is …
A New Approach To Executory Contracts, John A.E. Pottow
A New Approach To Executory Contracts, John A.E. Pottow
Articles
This Article will proceed as follows. First, it will offer an abbreviated explanation of the treatment of executory contracts under the Code, chronicling the development of the concept of executoriness and the subsequent challenges of its effects. Second, it will explain a new approach that embraces and makes its peace with executoriness by focusing on the proper treatment of non-executory contracts. Third, it will address some of the anticipated counterarguments to the new approach. Finally, it will offer a quick road test to demonstrate how the new approach would have more easily resolved a major litigated precedent in this field.
Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg
Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg
Articles
Informed trading--trading on information not yet reflected in a stock's price-- drives the stock market. Such informational advantages can arise from astute analysis of varied pieces of public news, from just released public information, or from confidential information from inside a firm. We argue that these disparate types of trading are all better regulated as part of the broader phenomenon of informed trading. Informed trading makes share prices more accurate, enhancing the allocation of capital, but also makes markets less liquid, which is costly to the efficiency of trade. Informed trading thus poses a fundamental trade-off in how it affects …
Legal Innocence And Federal Habeas, Leah Litman
Legal Innocence And Federal Habeas, Leah Litman
Articles
Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them …
Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah
Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah
Articles
The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties from the …
Are Medicaid Work Requirements Legal?, Nicholas Bagley
Are Medicaid Work Requirements Legal?, Nicholas Bagley
Articles
On January 12, 2018, the Centers for Medicare & Medicaid Services (CMS) approved a waiver allowing Kentucky to impose a work requirement on some nondisabled Medicaid beneficiaries. Similar waivers are sure to follow. Supporters see work requirements as a spur to force the idle poor to work; opponents see the requirements as a covert means of withholding medical care from vulnerable people. Setting the policy debate aside, however, are work requirements legal?
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Articles
President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …
How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad
How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad
Articles
Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …
Small Change, Big Consequences — Partial Medicaid Expansions Under The Aca, Adrianna Mcintyre, Allan M. Joseph, Nicholas Bagley
Small Change, Big Consequences — Partial Medicaid Expansions Under The Aca, Adrianna Mcintyre, Allan M. Joseph, Nicholas Bagley
Articles
Though congressional efforts to repeal and replace the Affordable Care Act (ACA) seem to have stalled, the Trump administration retains broad executive authority to reshape the health care landscape. Perhaps the most consequential choices that the administration will make pertain to Medicaid, which today covers more than 1 in 5 Americans. Much has been made of proposals to introduce work requirements or cost sharing to the program. But another decision of arguably greater long-term significance has been overlooked: whether to allow “partial expansions” pursuant to a state Medicaid waiver. Arkansas has already submitted a waiver request for a partial expansion, …
The Dubious Empirical And Legal Foundations Of Wellness Programs, Adrianna Mcintyre, Nicholas Bagley, Austin Frakt, Aaron Carroll
The Dubious Empirical And Legal Foundations Of Wellness Programs, Adrianna Mcintyre, Nicholas Bagley, Austin Frakt, Aaron Carroll
Articles
The article offers information on the dubious empirical and legal foundations of workplace wellness programs in the U.S. Topics discussed include enactment of Affordable Care Act for expanding the scope of incentives availas; analysis of financial incentives offered to the employees for encouraging their participation in wellness programs; and targeting incentives specifically toward individuals diagnosed with chronic diseases.
Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos
Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos
Articles
In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …
Federalism And The End Of Obamacare, Nicholas Bagley
Federalism And The End Of Obamacare, Nicholas Bagley
Articles
Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law …
Gaars And The Nexus Between Statutory Interpretation And Legislative Drafting: Lessons For The U.S. From Canada, Reuven S. Avi-Yonah, Amir Pichhadze
Gaars And The Nexus Between Statutory Interpretation And Legislative Drafting: Lessons For The U.S. From Canada, Reuven S. Avi-Yonah, Amir Pichhadze
Articles
Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way …
The Gibbons Fallacy, Richard A. Primus
The Gibbons Fallacy, Richard A. Primus
Articles
In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …
How Privacy Distorted Standing Law, Felix T. Wu
Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit
Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit
Articles
This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …
Financial Reform: Making The System Safer And Fairer, Michael S. Barr
Financial Reform: Making The System Safer And Fairer, Michael S. Barr
Articles
In the fall of 2008, the financial crisis crushed the U.S. economy and plunged the country into the Great Recession. The crisis shuttered American businesses, cost millions of Americans their jobs, and wiped out home values and household savings. The macro effects hit hardest and were the longest lasting for those least able to bear the brunt of the crisis. It was devastating to middle-income families and perhaps even more so to low- and moderate-income households, who had little financial buffer (Barr 2012a). Financial stability, never robust for these families, dropped precipitously (Barr and Schaffa 2016). Both in the United …
Inclusionary Takings Legislation, Gerald S. Dickinson
Inclusionary Takings Legislation, Gerald S. Dickinson
Articles
This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …
Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii
Expired Patents, Trade Secrets, And Stymied Competition, W. Nicholson Price Ii
Articles
Patents and trade secrecy have long been considered substitute incentives for innovation. When inventors create a new invention, they traditionally must choose between the two. And if inventors choose to patent their invention, society provides strong legal protection in exchange for disclosure, with the understanding that the protection has a limit: it expires twenty years from the date of filing. At that time, the invention is opened to the public and exposed to competition. This story is incomplete. Patent disclosure is weak and focuses on one technical piece of an invention—but that piece is often only a part of the …
Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane
Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane
Articles
"In recent years, Tesla Motors (recently renamed Tesla) has been engaged in a state-by-state ground way for the right to distribute it’s all-electric vehicles directly to consumers. The car dealers' lobby, with the political backing of General Motors, has fiercely battled back, relying on decades-old state dealer protection laws to argue that Tesla is legally bound to distribute through franchised dealers. Through a combination of favorable state legislative and judicial decisions, Tesla has won the right to distribute directly in many states, but remains categorically barred from direct distribution in important states like Michigan and Texas--and hence all direct distribution …
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
Articles
This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …
The New Labor Law, Kate Andrias
The New Labor Law, Kate Andrias
Articles
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …
From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos
From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos
Articles
If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …
Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley
Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley
Articles
This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.
What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow
What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow
Articles
This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to …
Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner
Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner
Articles
This article draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part II documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband-and-wife households only grew by 3.7%, while the unmarried-couple households grew by 41.4%. Because of the Supreme Court's decidion in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part …
Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard
Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard
Articles
This study investigates risk factor disclosures, examining both the voluntary, incentive-based disclosure regime provided by the safe harbor provision of the Private Securities Litigation Reform Act as well as the SEC's subsequent mandate of these disclosures. Firms subject to greater litigation risk disclose more risk factors, update the language more from year to year, and use more readable language than firms with lower litigation risk. These differences in the quality of disclosure are pronounced in the voluntary disclosure regime, but converge following the SEC mandate as low-risk firms improved the quality of their risk factor disclosures. Consistent with these findings, …