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Full-Text Articles in Law
Ip Misuse And Innovation Harm, Thomas F. Cotter
Ip Misuse And Innovation Harm, Thomas F. Cotter
Articles
"This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms …
Radbruch's Formula And Conceptual Analysis, Brian Bix
Radbruch's Formula And Conceptual Analysis, Brian Bix
Articles
Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its modern variations) is as (mere) …
Regional Strategies For Racial Integration Of Schools And Housing Post-Parents Involved, Myron Orfield
Regional Strategies For Racial Integration Of Schools And Housing Post-Parents Involved, Myron Orfield
Articles
No abstract provided.
Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs, Prentiss Cox
Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs, Prentiss Cox
Articles
Property Assessed Clean Energy (“PACE”) is a method of public financing for energy improvements through special assessments on local government property taxes. Interest in PACE exploded from its origination in 2008, with almost half the states rapidly enacted legislation enabling local governments to use their property collection power for this purpose. The growth in PACE is now suspended, and existing programs have been put on hold, in the face of opposition from the federal secondary mortgage market regulators. Governments and environmental advocates supporting PACE have initiated litigation against the federal regulators and are seeking passage of federal legislation to revive …
Will Employers Undermine Health Care Reform By Dumping Sick Employees?, Amy B. Monahan, Daniel Schwarcz
Will Employers Undermine Health Care Reform By Dumping Sick Employees?, Amy B. Monahan, Daniel Schwarcz
Articles
This Article argues that federal health care reform may induce employers to redesign their health plans so that low-risk employees retain employer-sponsored insurance (“ESI”) but high-risk employees opt out of ESI in favor of insurance available on the individual market. It shows that such a strategy would shift health care expenses for high-risk employees from employers and their low-risk employees to the public at large. Not only would this undermine the spirit of health care reform, but it would jeopardize the sustainability of the insurance exchanges that are designed to organize individual insurance markets starting in 2014. In particular, it …
Reevaluating Standardized Insurance Policies, Daniel Schwarcz
Reevaluating Standardized Insurance Policies, Daniel Schwarcz
Articles
This Article empirically debunks the common claim that homeowners insurance policies do not vary across different insurance carriers. It demonstrates that different carriers' homeowners policies differ radically with respect to numerous important coverage provisions. It also reports that a substantial majority of these deviations produce decreases in the amount of coverage relative to the presumptive industry standard, though some deviations increase coverage. Additionally, the Article describes the surprising absence of any mechanisms by which even informed and vigilant consumers could comparison shop among carriers on the basis of differences in coverage. It closes by reviewing various regulatory and judicial options …
Optimal Remedies For Bilateral Contracts, Francesco Parisi, Barbara Luppi, Vincy Fon
Optimal Remedies For Bilateral Contracts, Francesco Parisi, Barbara Luppi, Vincy Fon
Articles
No abstract provided.
Agency-Specific Precedents: Rational Ignorance Or Deliberate Strategy, Kristin Hickman
Agency-Specific Precedents: Rational Ignorance Or Deliberate Strategy, Kristin Hickman
Articles
No abstract provided.
Owning Hazard, A Tragedy, Barbara Welke
The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effective, Needed Or Sufficient?, Richard W. Painter
The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effective, Needed Or Sufficient?, Richard W. Painter
Articles
In Morrison v. National Australia Bank, the U.S. Supreme Court ruled in June 2010 that securities fraud suits could not be brought under Section 10(b) of the Exchange Act against foreign defendants by foreign plaintiffs who bought their securities outside the United States (so called, “f-cubed,” securities litigation). The Court held that Section 10(b) reaches only fraud in connection with the, “purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States.” Congress responded to Morrison with Section 929P of the Dodd-Frank Act, which gives federal …
The Antecedents Of Disputes: Complaining And Claiming, Herbert M. Kritzer
The Antecedents Of Disputes: Complaining And Claiming, Herbert M. Kritzer
Articles
This paper focuses on the earliest stages of the problem resolution function of law and legal institutions: the emergence of grievances and their communication to a responsible party as complaints and claims. While the literature on this subject is broad, both in terms of methods and in terms of the fairly large number of countries where empirical research on this subject has been conducted, it seems appropriate to ask the question, what do we know and not know about this subject? This paper seeks to answer this question and to suggest fruitful avenues of future inquiry. I first discuss the …
Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer
Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer
Articles
This is a review essay considering two books: 'The Death of the American Trial' by Robert P. Burns and 'Specializing the Courts' by Lawrence Baum. The organizing theme of the essay is the lay jurors represent one end of the spectrum of potential adjudicators with specialized courts and tribunals represent the other end of the spectrum. While Burns does not develop his argument in terms of specialization, a significant aspect of his argument is that there is value to relying on nonspecialist, lay adjudicators. Burns is an advocate for the trials, particularly jury trials; as such, he glosses over evidence …
Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort
Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort
Articles
As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in …
Constitutional Spaces, Allan Erbsen
Constitutional Spaces, Allan Erbsen
Articles
This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers …
Property Rights On The New Frontier: Climate Change, Natural Resource Development, And Renewable Energy, Alexandra B. Klass
Property Rights On The New Frontier: Climate Change, Natural Resource Development, And Renewable Energy, Alexandra B. Klass
Articles
This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control …
What If Daniel Ellsberg Hadn't Bothered?, Heidi Kitrosser
What If Daniel Ellsberg Hadn't Bothered?, Heidi Kitrosser
Articles
This article was written for the Indiana Law Review’s 2011 annual symposium entitled, “What If? Counterfactuals in Constitutional History.” As the article’s title suggests, it considers the impact of Daniel Ellsberg’s decision to leak the Pentagon Papers to the New York Times. The article takes some liberty with the topic of constitutional counterfactuals. Despite its author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, the article does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak …
Why Didn't Subprime Investors Demand A (Much Larger) Lemons Premium?, Claire Hill
Why Didn't Subprime Investors Demand A (Much Larger) Lemons Premium?, Claire Hill
Articles
The subprime crisis would never have occurred had investors not been such enthusiastic consumers of subprime securities. The investors now say, somewhat self-servingly (but probably correctly), that they did not understand the securities - securities for which they were willing to pay very high prices. This essay seeks to explain investors’ readiness to pay premium prices for these novel and complex instruments. The most satisfactory explanation lies in the incentives for herding among agents who made investment decisions for others. Investors (and markets) compare investment managers to other investment managers. A manager’s best strategy, therefore, may be to do what …
Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin
Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin
Articles
The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from such catastrophes whatsoever their causes. Rhetorically too, there is some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are more visible in the refugee and internally displaced communities that typically result from many humanitarian crises. Women, because of their acute care responsibilities in most societies, also disproportionately bear the brunt of familial …
Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser
Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser
Articles
This Article was written for a Fordham Law Review symposium on “Presidential Influence over Administrative Action, Recent Developments.” The Article explores developments in scientific integrity in the first two years of the Obama Administration. Specifically, it looks at the impact of “presidential administration” - that is, of top-down White House directives to administrative agencies - on scientific integrity. I define processes embodying scientific integrity as those designed to enable expert scientific findings to be presented without extra-scientific interference or distortion. Scientific integrity is a subset of information integrity. A system that facilitates information integrity is one that is relatively transparent …
Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell
Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell
Articles
How should corporate law deal with a controlling person's entry into a transaction with the corporation she controls? How should corporate law deal with transactions or decisions where one or more board members are interested? In this Article, we argue that Delaware law could do a better job answering these questions than it presently does. We propose a modest strengthening of judicial review of interested transactions. For transactions where one or more directors have a conflicting interest and defendants attempt to cleanse the transaction using approval by the disinterested directors, we propose that the defendants show that the approving disinterested …
Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill
Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill
Articles
The history of rating agency reform has not been inspiring. Until recently, it seemed stuck in an ever-repeating cycle of futility. A crisis would spur calls for reform, hearings would be conducted, the SEC would issue proposals and requests for comments, and ultimately, nothing would happen - until the next crisis, when the cycle would begin again. The Enron debacle, in which the rating agencies rated Enron’s debt investment grade until four days before Enron declared bankruptcy, did spur some action, including federal legislation and SEC regulations. Whatever else may be said about the Enron-spurred action, it failed to prevent …
Successor Liability, John H. Matheson
Successor Liability, John H. Matheson
Articles
The phrase mergers and acquisitions, or M&A for short, signifies both the business activity of growing (or divesting) corporate operations and the legal rules surrounding that activ- ity. One typical acquisition technique is the purchase of busi- ness assets by one company from another. Indeed, General Mo- tors and Chrysler utilized this transactional structure in their bankruptcy reorganization following the recent global financial crisis, with the United States Government as a part owner of the purchasing entities.1 Asset sales transactions have various benefits, one of which is that the purchaser presumptively does not assume any of the seller‘s liabilities as …
Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell
Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell
Articles
This article compares two approaches to understanding and preventing financial crises, Austrian and Keynesian business cycle theory. The two are traditionally, and rightly, seen as having diametrically opposed prescriptions, with the Austrian approach opposing governmental intervention and blaming central bank policy for most crises, while the Keynesian approach advocates active governmental intervention to both prevent crises and to end them when they do occur. The article argues that both approaches nonetheless have much in common. Each emphasizes the importance of radical uncertainty in financial markets and analyzes business cycles as tied to credit cycles that turn on shifting investor expectations. …
Gendering Constitutional Design In Post-Conflict Societies, Dina Francesca Haynes, Fionnuala Ní Aoláin, Naomi Cahn
Gendering Constitutional Design In Post-Conflict Societies, Dina Francesca Haynes, Fionnuala Ní Aoláin, Naomi Cahn
Articles
Over the past quarter-century, many countries have experienced deeply divisive and highly destructive armed conflicts, ranging from Afghanistan to The Democratic Republic of Congo to Rwanda, East Timor, Northern Ireland, and the countries of the former Yugoslavia. Each of these countries is at a different point on the spectrum of emerging from and addressing the causes of conflicts. Moreover, with varying degrees of intervention and assistance from the international community, each is responding in highly differentiated ways to the challenges of emerging from conflict, as well as rebuilding or creating new institutions to allow movement forward.
Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter
Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter
Articles
When a patent infringement defendant succeeds in proving that the patent owner has misused its patent, the patent is rendered unenforceable unless and until the misuse is purged. Case law has never clearly articulated precise criteria for determining the boundaries of the misuse doctrine, however. Although the misuse doctrine overlaps to some extent with substantive antitrust law, for example, under current law not every instance of misuse is necessarily an antitrust violation, and not every patent-related antitrust violation necessarily constitutes misuse. In this paper, I identify four possible justifications for the patent misuse doctrine that, in theory, could provide guidance …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Articles
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers, and commentators, culminating most recently in the Federal Circuit’s decision to revise certain aspects of the doctrine in its en banc decision in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information …
Don't Panic! Defending Cowardly Interventions During And After A Financial Crisis, Brett Mcdonnell
Don't Panic! Defending Cowardly Interventions During And After A Financial Crisis, Brett Mcdonnell
Articles
How should we regulate the U.S. financial system after the financial crisis, when we face the task with a radically inadequate understanding of what went wrong and what effect proposed regulations will likely have? This paper explores three quite different approaches to regulating in the face of severe uncertainty: the libertarianism of Friedrich Hayek, the conservatism of Michael Oakeshott, and the liberalism of John Maynard Keynes. Each thought deeply about the problem of how uncertainty affects human affairs, but each came to quite different conclusions about how to address such uncertainty. The paper outlines the core, immensely useful insights of …
Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky
Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky
Articles
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government …
Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter
Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter
Articles
In recent years, juries in some patent infringement suits have awarded prevailing patentees "reasonable royalty" damages in the eight-, nine-, and even ten-figure range. Though not all of these awards have been upheld following postjudgment motions or on appeal, concern over the magnitude and frequency of such awards has led to calls for the reform of various practices relating to the calculation of patent damages. Other voices, not surprisingly, have either defended the current system or, at the very least, expressed reservations over the need for significant changes. Underlying some of these debates are fundamental differences of opinion concerning the …
Rights, Responsibilities, And Roles: A Comment On Waldron, Brian H. Bix
Rights, Responsibilities, And Roles: A Comment On Waldron, Brian H. Bix
Articles
In his Edward J. Schoen Leading Scholar Lecture, "Dignity, Rights, and Responsibilities," Jeremy Waldron raises important issues regarding the connections between rights and responsibilities and rights and dignity. In this brief comment, I focus on the first set of connections - Waldron’s claim that "some rights actually are responsibilities" - examining in particular, the analytical claim he offers regarding a certain subset of rights. The paper ultimately concludes that Waldron’s argument that there is a type of right that is equivalent to a responsibility remains a provocative but not (yet) fully persuasive idea. Likely examples, like those involving a parent …