Law Commons^™

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Protecting Digital Works: Copyright Or Contract, Glynn Lunney

Faculty Scholarship

Since at least 1586, proponents of copyright have pointed to the tremendous ease with which competitors can copy works of authorship as the central justification for copyright protection. Because such works can be easily copied, a competitor could, in the absence of copyright, copy a work, and thereby avoid a large part of the original author's expense. This copying would allow competitors to undercut the original author's price for the work, and would deprive the original author of a fair wage for the labor and creativity she invested in the work. Faced with the threat of such competition, many would-be …

Impunity- Inertia, Inaction, And Invalidity: A Literature Review, Mary Margaret Penrose

Faculty Scholarship

Impunity is the torturer's most relished tool. It is the dictator's greatest and most potent weapon. It is the victim's ultimate injury. And, it is the international community's most conspicuous failure. Impunity continues to be one of the most prevalent causes of human rights violations in the world. As we near the new millennium, we must find effective ways to combat this vexing predicament.

Impunity knows no territorial bounds and speaks no specific language. It is not unique to any religion or race, and is not limited to any particular geographical region. Impunity remains a world wide problem. The end …

Lest We Fail: The Importance Of Enforcement In International Criminal Law, Mary Margaret Penrose

Faculty Scholarship

The title of this work embodies a concern that if the International Criminal Tribunals at Nuremberg, Tokyo and the recent additions at The Hague and Arusha are used as a gauge for deterring future violence, the international community must admit failure. This statement, however, is somewhat shortsighted in that it analyzes only one mechanism for achieving peace. The Nuremberg and Tokyo precedent provided the fertile ground for adopting two modern ad hoc International Tribunals and, potentially, an international criminal court capable of providing international redress for crimes. These advancements in a unified world community were not possible shortly after the …

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Faculty Scholarship

This Article argues that Hong Kong succeeded to the ICCPR and the reporting obligations under the Covenant. Part I of the Article traces the development of the ICCPR in Hong Kong before 1997. This development is important because the Joint Declaration provides only for the continuation of the ICCPR as applied to Hong Kong before the transition. Parts II and III examine whether Hong Kong succeeded to the ICCPR. Since the Covenant is ambiguous as to whether the contracting parties are limited to sovereign states, Part II evaluates whether Hong Kong satisfies the membership requirement as stipulated in Article 48(1) …

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Nomos, Narrative, And Adjudication: Toward A Jurisgenetic Theory Of Law, Franklin G. Snyder

Faculty Scholarship

The world is bubbling over with law. As the late Robert Cover tells us in Nomos and Narrative, it springs up about us incessantly and inexorably in a spontaneous riot of luxuriant foliage. It bursts forth not from gods or kings or parliaments or courts but from the normative universe--what Cover calls the nomos --of each group within a society, a process he calls "the creation of legal meaning" or "jurisgenesis." As there are unnumbered groups in society, all with their unique nomoi, all jostling each other, the very air is alive with divergent legal meanings on every …

Youthbuild, Dorothy Stoneman, Fatma Marouf

Faculty Scholarship

YouthBuild is a comprehensive youth and community development program that simultaneously addresses several core issues facing lowincome communities: education, housing, jobs, and leadership development. It is based on the conviction that the energy and intelligence of young people need to be liberated and enlisted in solving the problems facing our society, and that low income young people are an untapped resource for solving the problems facing their own communities.

YouthBuild engages disconnected young men and women who have no apparent path to a productive future by teaching them basic academic, life, leadership, and employability skills through work on community housing …

Physicians As Advocates, William M. Sage

Faculty Scholarship

The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial …

Trademark Monopolies, Glynn S. Lunney Jr

Faculty Scholarship

Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid-1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlin became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlin argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively cede …

Private Amici Curiae And The Supreme Court's 1997-1998 Term Employment Law Jurisprudence, Andrew P. Morriss

Faculty Scholarship

The amicus curiae brief has become a common occurrence in today's legal arena, especially with the proliferation of private interest groups that specialize in numerous topics of political and social interest. The substantial increase in the use of amici briefs, however, has sparked criticism concerning both the costs (in effort and resources) associated with filing these griefs and the persuasive effect (or lack thereof) the briefs have on the Court. Much of this criticism arises from the failure of many interest groups to posit "legal" arguments that apply the facts of a given case to the law. Instead, the amici …

City Of Boerne V. Flores: Religious Free Exercise Pays A High Price For The Supreme Court's Retaliation On Congress, Elizabeth Trujillo

Faculty Scholarship

The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person's right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress's …

Unplanned Career Paths: The Role Of Serendipity (Part 2), Jim Hambleton, Louis Calvert

Faculty Scholarship

Starting a new position, for whatever reason, means remaining open to new people and new procedures. While it may not be evident, almost every procedure in a library has a historical reason for being. The challenge is to take the time to understand why something is done the way that it is, then evaluate whether the underlying basis still is valid. People often do things "because that's the way it's always been done" without comprehending the underlying reason for the existing procedure. But if the underlying reason still is valid, procedures shouldn't be changed haphazardly.

Understanding the culture of the …

Unplanned Career Paths: The Role Of Serendipity (Part 1), Jim Hambleton, Louis Calvert

Faculty Scholarship

Several years ago a colleague wrote about career planning. His article was filled with fine ideas about how to map out a career. As both authors are at the point where our careers are about two-thirds over, we thought we would write about how careers really work out.

Arbitration And Beyond: Avoiding Pitfalls In Drafting Dispute Resolution Clauses In Employment Contracts, Nancy A. Welsh

Faculty Scholarship

Article Extract:

You've just helped a mid-sized company, Allwell Corp., to reach a settlement in an action brought by a disgruntled former employee. The CEO turns to you and says, "Even though I still believe that we didn't do anything wrong, I'm glad this lawsuit is over. I can't believe how much money and time we've wasted in defending ourselves. Now, how can we keep this from happening in the future? I've been reading about companies putting arbitration clauses in all kinds of contracts. I want to know whether we can require our employees to arbitrate and maybe even require …

Pink Ghetto, Susan Ayres

Faculty Scholarship

This creative piece offers a postmodern feminist critique of law faculty hierarchies, including the status of legal research and writing faculty positions. It incorporates theories of Hélène Cixous to challenge discriminatory practices in law schools.

Parallel Litigation, James P. George

Faculty Scholarship

Parallel litigation--a dispute generating multiple lawsuits--is not a new phenomenon and is not limited to celebrities or sensational controversies. Besides the publicity-generating lawsuits noted above, divorce actions have a long history of parallel lawsuits and conflicting judgments. Recent years have seen an expansion both in the incidence and the subject matter of parallel lawsuits, perhaps fueled by the traditional motivations of home-court advantage and differing laws, along with the expansion of personal jurisdiction rules in the past fifty years.

In spite of this increase, the vocabulary remains imprecise and ambiguous. Parallel litigation would seem to mean identical or mirror image …

Codification And Right Answers, Andrew P. Morriss

Faculty Scholarship

Attempting to survey the entire sweep of the nineteenth-century American codification debate is well beyond the scope of this article. Here, I will concentrate on what I view to be the most interesting portion—the debate provoked by draft codes prepared by David Dudley Field for New York during the 1860s. Field's drafts formed the basis for the codes ultimately adopted in Dakota Territory, California, and Montana as well as sparking years of often heated debate in New York.

I concentrate on the debate over the Field Codes, to the exclusion of the successful codifications in Georgia and Louisiana and unsuccessful …