Law Commons^™

Principles To Guide The Office Of Legal Counsel, Walter E. Dellinger Iii, Christopher H. Schroeder, Dawn Johnsen, Randolph Moss, Joseph Guerra, Beth Nolan, Todd Peterson, Cornelia Pillar

Faculty Scholarship

Former members of Office of Legal Counsel ("OLC") in the Department of Justice offer guidance for their successors. Among the document's recommendations are suggestions that the OLC "provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies;" and "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure."

The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park

Faculty Scholarship

To protect American investment abroad, the United States traditionally endorsed arbitration as a preferred means to resolve disputes between investors and host countries. Yet a growing awareness of the down-side of arbitration, at least from the perspective of the party seeking the home-town justice of its own courts, has led to media attacks and legislative initiatives intended to hobble neutral international adjudication. This article suggests that assaults on investment arbitration are misguided, and may end up doing more harm than good. On balance, NAFTA arbitration serves as a positive force in the protection of legitimate economic expectations, enhancing the type …

Why Is There So Little Money In U.S. Politics?, John M. De Figueiredo, Stephen Ansolabehere, James M. Snyder Jr.

Faculty Scholarship

No abstract provided.

The Revolution In Military Legal Affairs : Air Force Legal Professionals In 21 St Century Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

How Free Trade Can Save The Everglades, Aaron Schwabach

Faculty Scholarship

No abstract provided.

The Challenges Of Globally Accessible Process, Peter L. Strauss

Faculty Scholarship

This chapter embraces the strategic use of the Internet for achieving new forms of transparency and participation in the regulatory cooperation process. It explores ‘the challenges of globally accessible process’ through the use of new information technologies. It holds that the incorporation of these technologies in agency processes at the US federal level has created possibilities for the most transparent, participatory, and broadly deliberative regulatory system in the world to become still more so. The Internet promises not merely to expand access to information about the substance and process of regulation, but also to ‘move the government closer to the …

Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …

Rethinking Cost-Benefit Analysis, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

This paper analyzes cost-benefit analysis from legal, economic, and philosophical perspectives. The traditional defense of cost-benefit analysis is that it maximizes a social welfare function that aggregates unweighted and unrestricted preferences. We follow many economists and philosophers who conclude that this defense is not persuasive. Cost-benefit analysis unavoidably depends on controversial distributive judgments; and the view that the government should maximize the satisfaction of unrestricted preferences is not plausible. However, we disagree with critics who argue that cost-benefit analysis produces morally irrelevant evaluations of projects and should be abandoned. On the contrary, cost-benefit analysis, suitably constrained, is consistent with a …

The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz

Faculty Scholarship

On July 1, 1997, the Federal Trade Commission (FTC) closed its investigation of the merger of the Boeing Company (Boeing) and the McDonnell Douglas Corporation (McDonnell Douglas), essentially approving the merger. The proposed $14 billion merger was quite significant, as it would unite the first and third largest civil aircraft companies in the world. Although the proposed merger had passed muster under U.S. antitrust laws, Boeing still faced the obstacle of gaining approval from the European Commission (EC), the antitrust enforcement agency of the European Union (EU). The EC initially sought to reject the merger and to levy heavy penalties …

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …

Protection Of Famous Trademarks In Japan And The United States, Kenneth L. Port

Faculty Scholarship

The concepts of trademark jurisprudence in Japan and the United States differ drastically. This difference is apparent in many aspects of trademark protection in both countries and is most evident in the treatment of famous marks. Although Japan and the United States share elements of trademark law that cause some observers to claim that Japan is legally the fifty-first State, the conceptual differences at the foundation of trademark law in each country are so significant that such a claim seems inaccurate and misleading.

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Rule Of Too Much Law? The New Safety/Soundness Rulemaking Responsibilities Of The Federal Banking Agencies, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Corporate Risk Management And Risk Communication In The European Community And The United States, Michael S. Baram

Faculty Scholarship

The responsibility of private firms to communicate hazard and risk information to government officials and persons at risk has emerged as one of the central features of corporate risk management in the European Community ("E.C.") and the United States ("U.S."). This function is commonly described as "risk communication."' In both the E.C. and the U.S., new legal requirements and public attitudes now promote corporate disclosure of hazard and risk information on an unprecedented scale.

Corporate risk management is a vast, complex field of activity that is largely unaddressed by commentators and unknown to the general public in both industrial societies. …

Dispute Over The United States’ Denial Of A Visa To Yasir Arafat, Sadiq Reza

Faculty Scholarship

On November 26, 1988, the United States denied a visa to Yasir Arafat, Chairman of the Executive Committee of the Palestine Liberation Organization (PLO), when he sought to enter the United States to attend the forty-third session of the United Nations (UN) in New York. The denial rekindled a forty-year-old dispute between the United States and the UN over the extent to which the United States may, under the terms of the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (Headquarters Agreement), restrict entry to persons seeking to enter the …

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

The President’S Powers As Commander-In-Chief Versus Congress’ War Power And Appropriations Power, Charles Bennett, Arthur B. Culvahouse Jr., Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Basics Of Business Reorganization In Bankruptcy, Steven L. Schwarcz

Faculty Scholarship

In this article, Steven Schwarcz offers an overview of Chapter 11 bankruptcy. In addition to beginning a Chapter 11 case, he also discusses administration of these cases and the plan of reorganization that a debtor must consider.

Equality For Individuals Or Equality For Groups: Implications Of The Supreme Court Decision In The Manhart Case, William W. Van Alstyne

Faculty Scholarship

This commentary breaks down the case of the City of Los Angeles Department of Water and Power v. Manhart and discusses what effects the Supreme Court's decision will have when Title VII is applied to university employers, particularly in their relationship with TIAA-CREF

Book Reviews, Paul W. Bruton

Faculty Scholarship

No abstract provided.