Law Commons^™

Law School Learning Communities: A Community Of Learners For The Benefit Of All Learners, Oscar J. Salinas

Faculty Publications

No abstract provided.

Bad Faith At Middle Age: Comments On The Principle Without A Name (Yet), Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, …

Reducing The Discount Rate, Ben L. Trachtenberg

Faculty Publications

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that …

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state …

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.

Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins

Faculty Publications

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority …

Subverting Symbolism: The Matthew Shepard And James Byrd, Jr. Hate Crimes Prevention Act And Cooperative Federalism, Kami Chavis Simmons

Faculty Publications

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the "HCPA"). The HCPA significantly expands the federal government's authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion …

Regulating Software Patents, Colleen Chien

Faculty Publications

No abstract provided.

Startups And Patent Trolls, Colleen Chien

Faculty Publications

While patent assertion entities (or patent “trolls”) have received a lot of attention, little of it has focused on the distributional impacts of their demands. The impact on PAEs on startups is crucial, because startups contribute to job creation and innovation, making them potential targets and sources of patents. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty entities with relevant knowledge of startup patent issues.

I find that although large companies tend to dominate …

Informal Institutions And Property Rights, Lan Cao

Faculty Publications

No abstract provided.

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Reforming Software Patents, Colleen Chien

Faculty Publications

While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire …

Property Before Property: Romanizing The English Law Of Land, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Who Shot Charles Summers?, Kyle Graham

Faculty Publications

This short piece ties up a loose end from the somewhat famous Torts case of Summers v. Tice. In it, St. Peter considers who, as between Harold Tice and Ernest Simonson, actually shot Charles Summers.

The International Trade Commission And Patent Disputes, Colleen Chien

Faculty Publications

Testimony before the House Committee on the Judiciary. Video of this event available here (requires Windows Media Player): http://judiciary.house.gov/hearings/Hearings%202012/hear_07182012.html

Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko

Faculty Publications

In December 2010, President Barack Obama signed into law the “Don’t Ask, Don’t Tell Repeal Act of 2010,” which provided for repeal of the policy prohibiting gay people from serving openly in the military, after consideration of a Department of Defense review on the implementation of such a repeal. This article examines the history of the exclusion of openly gay people from military service in the United States from the early twentieth century up until the time of the repeal. The author concludes from this review that the dominant purpose of the military’s exclusion of openly gay people was to …

Featuring People In Ads, Eric Goldman, Rebecca Tushnet

Faculty Publications

This is a book chapter from a new casebook, Advertising & Marketing Law: Cases and Materials, by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Colleen Chien, Richard J. Gilbert, Carl Shapiro, Thomas F. Cotter, Stefania Fusco, Shubha Ghosh, Eric Goldman, Dan L. Burk, Daniel R. Cahoy, Michael A. Carrier, Jorge L. Contreras, Joseph Scott Miller, Michael Risch, Jason Schultz, Ted M. Sichelman, Arti K. Rai, Katherine J. Strandburg, Esther Van Zimmerman, Christal Sheppard

Faculty Publications

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …

Why Patentable Subject Matter Matters For Software, Brian J. Love

Faculty Publications

Increasingly, courts weary from years of arguing about the scope of patentable subject matter for software patents seem ready to throw in the towel. Rather than continue efforts to craft a test for determining when a software invention graduates from an “abstract idea” or mere algorithm into a patentable invention, several recent Federal Circuit opinions dismissinely reject section 101 challenges as attacks that should have be made instead under sections 102, 103, and 112. This short essay criticizes this recent trend in patentable subject matter jurisprudence. Accused infringers look to section 101 for relief not because doing so is a …

Promise And Private Law, Nathan B. Oman

Faculty Publications

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney

Faculty Publications

Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, …

Financial Decision-Making For Adults Lacking The Capacity To Make Their Own Decisions, David M. English

Faculty Publications

A significant percentage of individuals lack sufficient mental capacity to make financial, health, and personal-care decisions for at least some period during their lifetimes. For those who die suddenly, that period may be brief. For those with Alzheimer’s Disease or other forms of dementia, the period of incapacity may last many years.

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.

Who Decides On Liberty?, Thomas P. Crocker

Faculty Publications

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem unavoidable. Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer. But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty? After all, to make decisions about the appropriate balance between security and liberty …

Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton

Faculty Publications

No abstract provided.

Playing Without Aces: Offset And The Limits Of Flexibility Under Clean Air Act Climate Policy, Nathan D. Richardson

Faculty Publications

The United States Environmental Protection Agency (EPA) continues to move ahead with regulation of greenhouse gas emissions under the Clean Air Act (CAA). Previous work has indicated that basic forms of compliance flexibility—trading—appear to be legally permissible under section III of the CAA. This Article takes a close look at more expansive and ambitious types of flexibility: trading between different kinds of sources, biomass co-firing, and above all, offsets. It concludes that most types of such extended flexibility are either legally incompatible with the CAA, or so legally problematic that EPA is unlikely to adopt them. This has important implications …

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Faculty Publications

No abstract provided.