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Articles 1 - 15 of 15
Full-Text Articles in Law
The Incoherent Role Of Bargaining Power In Contract Law, Max Helveston, Michael Jacobs
The Incoherent Role Of Bargaining Power In Contract Law, Max Helveston, Michael Jacobs
College of Law Faculty
Contracts that result from the abuse of unequal bargaining power have long been a concern of contract law. Courts have proscribed efforts by the "powerful" to take unfair advantage of the "weak" through contracts of adhesion and standard form contracts. Certain kinds of clauses — liability waivers, and covenants not to compete, among others — regularly attract judicial suspicion because their appearance is deemed indicative of such advantage-taking. In books, symposia, and journal articles, generations of legal scholars have debated the role of bargaining power considerations in the analysis of contracts and contractual terms. The "bargaining power" construct has become …
Controlling The Arms Trade: One Important Stride For Humankind, Barry Kellman
Controlling The Arms Trade: One Important Stride For Humankind, Barry Kellman
College of Law Faculty
No abstract provided.
Safe Harbors In Tax Law, Emily Cauble
Safe Harbors In Tax Law, Emily Cauble
College of Law Faculty
Safe harbors pervade tax law. Yet, the academic literature offers no comprehensive account of why they exist. This Article begins to fashion that account by developing a theoretical framework for understanding the functional purposes that safe harbors serve. In order to analyze safe harbors’ functional purposes, this Article compares and contrasts them with rules and standards. Articulating the reasons for adopting safe harbors has important practical implications. For instance, analyzing the functions of safe harbors can shed light on the use of other rule-standard hybrids such as rebuttable or irrebuttable presumptions. In addition, this Article provides direction to lawmakers considering …
Safe Harbors In Tax Law, Emily Cauble
Safe Harbors In Tax Law, Emily Cauble
College of Law Faculty
Safe harbors pervade tax law. Yet, the academic literature offers no comprehensive account of why they exist. This Article begins to fashion that account by developing a theoretical framework for understanding the functional purposes that safe harbors serve. In order to analyze safe harbors’ functional purposes, this Article compares and contrasts them with rules and standards. Articulating the reasons for adopting safe harbors has important practical implications. For instance, analyzing the functions of safe harbors can shed light on the use of other rule-standard hybrids such as rebuttable or irrebuttable presumptions. In addition, this Article provides direction to lawmakers considering …
Facilitating Incomplete Contracts, Wendy Epstein
Facilitating Incomplete Contracts, Wendy Epstein
College of Law Faculty
Contract law abhors incompleteness. Although no contract can be entirely complete, the idea of a purposefully incomplete or underspecified contract is antithetical to lawyers’ ideals of certainty for the parties and for the law. Indeed, contract law is designed to incentivize parties to specifically articulate their intentions. Yet there is a growing body of interdisciplinary work in economics and cognitive psychology demonstrating that highly specified contracts tend to stifle intrinsic motivation and innovation, whereas less-specified contracts — particularly in public-private contracting, IP, and contracting for innovation — can induce higher effort levels and a more cooperative principal-agent relationship than the …
Idea Class Actions After Wal-Mart V. Dukes, Mark Weber
Idea Class Actions After Wal-Mart V. Dukes, Mark Weber
College of Law Faculty
Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …
In Defense Of Idea Due Process, Mark Weber
In Defense Of Idea Due Process, Mark Weber
College of Law Faculty
Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …
Egypt In Transition, M. Bassiouni
More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg
More Than Ip: Trademark Among The Consumer Information Laws, Michael Grynberg
College of Law Faculty
We generally think about trademark law as a branch of intellectual property law. Because trademark law regulates marketplace information, however, its closer peers may be other consumer information regimes — e.g., false advertising law and FTC regulations — instead of incentive-based IP laws like copyright and patent. This article considers some implications of this observation.In many cases optimal trademark policy depends on ascertaining the state of play in another consumer information doctrine. That may be less simple than it sounds. Trying to determine how another body of law treats a parallel issue presupposes that we know where to look. We …
New York Times V. Sullivan At 50: Despite Criticism, The Actual Malice Standard Still Provides Breathing Space For Communications In The Public Interest, John Lewis, Bruce Ottley
New York Times V. Sullivan At 50: Despite Criticism, The Actual Malice Standard Still Provides Breathing Space For Communications In The Public Interest, John Lewis, Bruce Ottley
College of Law Faculty
No abstract provided.
One Step Forward For Hedge Fund Investors: The Removal Of The Solicitation Ban And The Challenges That Lie Ahead,, Cary Martin Shelby
One Step Forward For Hedge Fund Investors: The Removal Of The Solicitation Ban And The Challenges That Lie Ahead,, Cary Martin Shelby
College of Law Faculty
The JOBS Act accomplished what many thought to be inconceivable. After being excluded from the privilege of advertising for eight decades, Congress has finally lifted the solicitation ban for emerging companies, hedge funds, and various other private vehicles. With respect to the hedge fund industry, which is the primary focus of this article, there have been numerous discussions among commentators regarding the anticipated effects of this law. These discussions range from measuring the extent to which the JOBS Act will facilitate capital formation, to whether it will undermine this goal by leading to an influx of fraudulent investment schemes. In …
Airline Immunity For Reporting Suspicious Activities Under The Aviation And Transportation Security Act: Air Wisconsin Airlines Corp. V Hoeper, Bruce Ottley
College of Law Faculty
No abstract provided.
The Contraception Mandate And The Forgotten Constitutional Question, Zoe Robinson
The Contraception Mandate And The Forgotten Constitutional Question, Zoe Robinson
College of Law Faculty
Litigation over the Contraception Mandate — which requires all employer insurance plans to include coverage for contraceptives — is quickly becoming one of the largest religious liberty challenges in American history. The most powerful claim raised by some of the litigants is that their status as “religious institutions” exempt them from compliance with the Mandate. But what is a religious institution, and who gets to become one — and why? Should the University of Notre Dame be treated the same as the Archdiocese of the District of Columbia? Should lobbying group Priests for Life be lumped together with Hobby Lobby, …
What Is A 'Religious Institution'?, Zoe Robinson
What Is A 'Religious Institution'?, Zoe Robinson
College of Law Faculty
Change in the First Amendment landscape tends towards the incremental, but the Supreme Court’s opinion two terms ago in Hosanna-Tabor v. EEOC — holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations — is better understood as a jurisprudential earthquake. The suddenness and scale of the shift helps to explain the turmoil that has ensued in the lower courts and law journals. And yet, it could be that the biggest aftershock has yet to be felt. The Court left open the most important functional question that exists in scenarios …
Mercy In Immigration Law, Allison Tirres
Mercy In Immigration Law, Allison Tirres
College of Law Faculty
What role should mercy play in immigration law? This essay draws on the robust debate in the criminal law about the role of mercy in the hopes of starting a conversation among immigration law scholars and practitioners. Mercy skeptics argue that mercy contravenes justice, while advocates argue that mercy is a necessary countermeasure to the unrelenting harshness of criminal law today. I argue that the problems of mercy in the criminal law are amplified in the immigration law context. The lack of procedural and substantive protections for immigrants, the acceptance of unfettered discretion and lack of oversight of agency action, …