Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Articles

University of Minnesota Law School

2009

Articles 1 - 30 of 30

Full-Text Articles in Law

Equitable Prescription Drug Coverage: Preventing Sex Discrimination In Employer-Provided Health Plans, Stephen F. Befort, Elizabeth C. Borer Jan 2009

Equitable Prescription Drug Coverage: Preventing Sex Discrimination In Employer-Provided Health Plans, Stephen F. Befort, Elizabeth C. Borer

Articles

Nearly half of large, employer-sponsored group health plans in the United States do not cover prescription contraceptives used by women. This exclusion contributes to unintended pregnancies, higher out-of-pocket expenses, and adverse social consequences. The federal courts currently are split on whether this exclusion violates Title VII as amended by the Pregnancy Discrimination Act (PDA). In a recent decision that is of first impression at the circuit court level, the Eighth Circuit ruled in In re Union Pacific Railroad Employment Practices Litigation that the lack of contraception coverage in an employee health insurance plan that covered Rogaine and Viagra for men ...


The Mostly Unintended Effects Of Mandatory Penalties: Two Centuries Of Consistent Findings, Michael Tonry Jan 2009

The Mostly Unintended Effects Of Mandatory Penalties: Two Centuries Of Consistent Findings, Michael Tonry

Articles

No abstract provided.


What Explains Persistent Racial Disproportionality In Minnesota's Prison And Jail Populations?, Richard Frase Jan 2009

What Explains Persistent Racial Disproportionality In Minnesota's Prison And Jail Populations?, Richard Frase

Articles

No abstract provided.


The Untold Story Of America's First Sentencing Commission, Michael Tonry Jan 2009

The Untold Story Of America's First Sentencing Commission, Michael Tonry

Articles

No abstract provided.


Second Look Provisions In The Proposed Model Penal Code Revisions, Richard Frase Jan 2009

Second Look Provisions In The Proposed Model Penal Code Revisions, Richard Frase

Articles

No abstract provided.


Norval Morris's Contributions To Sentencing Structures, Theory, And Practice, Richard Frase Jan 2009

Norval Morris's Contributions To Sentencing Structures, Theory, And Practice, Richard Frase

Articles

No abstract provided.


So Much More Than A "Harmless Drudge": Samuel Johnson And His Dictionary, Joan Howland Jan 2009

So Much More Than A "Harmless Drudge": Samuel Johnson And His Dictionary, Joan Howland

Articles

No abstract provided.


Differential Compensation And The "Race To The Bottom" In Consumer Insurance Markets, Daniel Schwarcz Jan 2009

Differential Compensation And The "Race To The Bottom" In Consumer Insurance Markets, Daniel Schwarcz

Articles

No abstract provided.


Redesigning Consumer Dispute Resolution: A Case Study Of The British And American Approaches To Insurance Claims Conflict, Daniel Schwarcz Jan 2009

Redesigning Consumer Dispute Resolution: A Case Study Of The British And American Approaches To Insurance Claims Conflict, Daniel Schwarcz

Articles

Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer's adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution (ADR) options that do exist-such as the conciliation services that insurance regulators offer or the existing variants of insurance arbitration-are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom's innovative Financial Ombudsman Service ...


Disclosure, Endorsement, And Identity In Social Marketing, William Mcgeveran Jan 2009

Disclosure, Endorsement, And Identity In Social Marketing, William Mcgeveran

Articles

Social marketing is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers can send personalized promotional messages featuring an ordinary customer to that customer's friends. Because they reveal a customer's browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals' ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation-spanning from privacy to trademark and unfair competition ...


Climate Change And Reassessing The "Right" Level Of Government: A Response To Bronin, Alexandra B. Klass Jan 2009

Climate Change And Reassessing The "Right" Level Of Government: A Response To Bronin, Alexandra B. Klass

Articles

Climate change has caused lawmakers, policymakers, and scholars to reassess the traditional role of federal, state, and local governments to regulate a broad range of environmental, energy, and land-use issues. While the problem of climate change would appear to be best addressed at the international, or at least the federal level, it has been local governments and states that have taken the first and most important steps in recognizing the problem and experimenting with different ways to address it. While some of these experiments show how the "lower" levels of government can have a significant and positive impact on national-level ...


Empirical Legal Studies Before 1940: A Bibliographic Essay, Herbert M. Kritzer Jan 2009

Empirical Legal Studies Before 1940: A Bibliographic Essay, Herbert M. Kritzer

Articles

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt ...


Carbon Capture And Sequestration: Identifying And Managing Risks, Alexandra B. Klass, Elizabeth J. Wilson Jan 2009

Carbon Capture And Sequestration: Identifying And Managing Risks, Alexandra B. Klass, Elizabeth J. Wilson

Articles

Carbon capture and geologic sequestration (CCS) technology promises to provide deep emissions cuts, particularly from coal power generation, but deploying CCS creates risks of its own. This article first considers the risks associated with CCS, which involves capturing CO{sub 2} emissions from industrial sources and power plants, transporting the CO{sub 2} by pipeline, and injecting it underground for permanent sequestration. The article then suggests ways in which these risks can be minimized and managed and considers more broadly when or if CCS should be deployed or whether its use should be limited or rejected in favor of other ...


Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass Jan 2009

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Articles

This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights ...


The Accountable Executive, Heidi Kitrosser Jan 2009

The Accountable Executive, Heidi Kitrosser

Articles

This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only deem ...


Protecting Them From Themselves: The Persistence Of Mutual Benefits Arguments For Sex And Race Inequality, Jill Elaine Hasday Jan 2009

Protecting Them From Themselves: The Persistence Of Mutual Benefits Arguments For Sex And Race Inequality, Jill Elaine Hasday

Articles

Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions. The argument posits that women and people of color attempting to secure expanded rights and opportunities do not understand their own best interests and do not realize that they benefit from limits on their prerogatives and choices. Indeed, proponents of this argument insist that restricting the rights and opportunities available ...


Why Did Anyone Listen To The Rating Agencies After Enron?, Claire Hill Jan 2009

Why Did Anyone Listen To The Rating Agencies After Enron?, Claire Hill

Articles

Enron was rated investment grade by Moody’s, Standard and Poor’s, and Fitch until four days before it declared bankruptcy - scarcely a ringing endorsement of the agencies’ acumen. Even before Enron, the rating agencies had come in for significant criticism. Yet many investors who lost considerable sums in the financial crisis are saying that they relied on the rating agencies. How can this reliance be reconciled with what preceded it? I argue that an adaptive trait - incorporating new data that potentially conflicts with one’s pre-existing worldview so as to preserve as much of that worldview as possible - proved ...


Bargaining In The Shadow Of The Lawsuit: A Social Norms Theory Of Incomplete Contracts, Claire Hill Jan 2009

Bargaining In The Shadow Of The Lawsuit: A Social Norms Theory Of Incomplete Contracts, Claire Hill

Articles

Complex business contracts are notoriously difficult to write and read. Certainly, when litigation arises, courts scarcely have an easy time interpreting them. Indeed, contracts don't look at all as though they are written to tell a court what the parties want. Why can't smart, well-motivated lawyers do a better job? My article argues that they rationally don't try. I argue for a view of contracting in which parties aren't principally trying to set forth an agreement for a court to enforce. Rather, by leaving inartful language and ambiguity in the agreement, parties are bonding themselves not ...


Women, Security, And The Patriarchy Of Internationalized Transitional Justice, Fionnuala Ní Aoláin Jan 2009

Women, Security, And The Patriarchy Of Internationalized Transitional Justice, Fionnuala Ní Aoláin

Articles

In the contemporary global context, transition from conflict to peace and from authoritarian to democratic governance is a critical preoccupation of many states, particularly the United States. In these contexts, accountability for the abuses committed by prior regimes has been a priority for international institutions, states and new governments. Equally, transitional justice goals have expanded to include fashioning new domestic political and legal institutions and a broad range of structural reform in multiple spheres. Whether an expanded or contracted transitional justice paradigm is used to define the perimeters of change, gender concerns have been markedly absent across political contexts and ...


Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton Jan 2009

Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton

Articles

This article examines a unique relationship—specifically, the connection between the rule of law, as it is imported and experienced in post-conflict/post-repression societies, and gender. We assert that some of the most gendered and problematic dimensions of rule of law discourse and practice can arise with intensity in post-conflict or post-repressive societies. In particular, we explore a fundamental contradiction. Transitional societies bring powerful and transformative moments to global attention.


The Modern Law Of Corporate Groups: An Empirical Study Of Piercing The Corporate Veil In The Parent-Subsidiary Context, John H. Matheson Jan 2009

The Modern Law Of Corporate Groups: An Empirical Study Of Piercing The Corporate Veil In The Parent-Subsidiary Context, John H. Matheson

Articles

Today, massive corporations – both national and international – dominate financial and commercial activities, exercising enormous economic power. The standard organizational structure for these businesses has a parent corporation as the sole shareholder of multiple, separately incorporated operating subsidiaries (or layers of subsidiaries) in a corporate group. One particular application of the law of corporate groups entails dealing with the ramifications of subsidiary insolvency. Given the massive financial assets of many multinational parent corporations, actions to ignore the legal separateness of a corporate subsidiary of a parent company offer some of the biggest potential payoffs for claimants. In today's global economic ...


Executive Compensation And The Optimal Penumbra Of Delaware Corporate Law, Claire Hill, Brett Mcdonnell Jan 2009

Executive Compensation And The Optimal Penumbra Of Delaware Corporate Law, Claire Hill, Brett Mcdonnell

Articles

Corporate law has done a very bad job on executive pay: executives have been rewarded for stellar performance that turned out to be anything but stellar, and shareholders have had no meaningful recourse. Indeed, there are many other such cases, where there is no breach of the fiduciary duties of care and loyalty, but the board's behavior nevertheless smacks of a classic agency problem known as structural bias. We argue that law on the books and as enforced is not well situated to deal with structural bias. What shows some promise is the marshaling of extra legal forces that ...


Professor Bainbridge And The Arrowian Moment: A Review Of The New Corporate Governance In Theory And Practice, Brett Mcdonnell Jan 2009

Professor Bainbridge And The Arrowian Moment: A Review Of The New Corporate Governance In Theory And Practice, Brett Mcdonnell

Articles

The New Corporate Governance in Theory and Practice, a new book by Stephen Bainbridge, pulls together the leading arguments for director primacy that Bainbridge has made in a series of articles. In his core argument, Bainbridge uses theoretical work by Kenneth Arrow to explain the attractions of the separation of ownership and control with a centralized hierarchy headed by a board of directors. Bainbridge posits that achieving an optimal tradeoff between authority and accountability is the central problem of corporate law. He uses a key passage from Arrow to argue that in making this tradeoff, lawmakers should always make a ...


Irb Guidance: The No Man's Land Of Tax Code Interpretation, Kristin Hickman Jan 2009

Irb Guidance: The No Man's Land Of Tax Code Interpretation, Kristin Hickman

Articles

This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whether the Administrative Procedure Act requires public notice and comment procedures) and the determination of whether Chevron or Skidmore provides the appropriate evaluative standard on judicial review both ultimately turn on whether the agency legal interpretation at issue carries the force and effect of law. The precise contours of the force of law concept are unclear, as is ...


Ross And Olivecrona On Rights, Brian H. Bix Jan 2009

Ross And Olivecrona On Rights, Brian H. Bix

Articles

Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on ...


Staying Alive: Public Interest Law In Contemporary Latin America, Stephen Meili Jan 2009

Staying Alive: Public Interest Law In Contemporary Latin America, Stephen Meili

Articles

This paper explores the current state of public interest lawyering in three Latin American countries: Argentina, Brazil and Chile. Based on a series of open-ended interviews with lawyers, judges and social movement activists, it compares public interest lawyering in these countries now with how it was practiced when the author interviewed some of the same individuals in the early to mid 1990s. Its analysis is set within the context of important geopolitical and socio-legal phenomena: the current global economic crisis and the judicialization of politics and constitutionalization of rights that has swept across the region over the past two decades ...


Rule Of Law: What Does It Mean?, Robert Stein Jan 2009

Rule Of Law: What Does It Mean?, Robert Stein

Articles

I congratulate the Editors of the Journal of International Law on organizing this Symposium on the subject of the Rule of Law, specifically, Creating a Rule of Law Culture. The Journal was established during the time I served as Dean of the Law School, and I take pride in the way it has grown through the years.


Teaching The Rule Of Law, Robert Stein Jan 2009

Teaching The Rule Of Law, Robert Stein

Articles

We have heard throughout the day of the enormous amount of rule of law work going on all over the world. This primarily began in the early nineties after the fall of the Berlin Wall and the collapse of the Soviet Union.


The Administration Of Justice And Human Rights, David Weissbrodt Jan 2009

The Administration Of Justice And Human Rights, David Weissbrodt

Articles

This article discusses the place of international human rights standards - as elaborated in global and regional treaties, other instruments, and authoritative interpretations - in the advancement of the administration of justice. The administration of justice includes the norms, institutions, and frameworks by which states seek to achieve fairness and efficiency in dispensing criminal, administrative, and civil justice. The United Nations, regional organisations, and other international structures have codified a substantial framework of fair trial and other administration of justice standards, which have been accepted, albeit not always followed, by most nations and which have begun to be used in the context ...


A Traditionalist Case For Gay Marriage, Dale Carpenter Jan 2009

A Traditionalist Case For Gay Marriage, Dale Carpenter

Articles

I will present here the outline of an argument for same-sex marriage within a particular school of conservatism. Let's call it traditionalism or Burkeanism, after the eighteenth century British statesman and writer Edmund Burke. It is important, I think, to note at the outset what I am not talking about. I am not talking about libertarianism. It is not economic conservatism. It is not neo-conservatism. It is not religious conservatism. And it is not compassionate conservatism.