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Articles

University of Minnesota Law School

2011

Articles 1 - 30 of 40

Full-Text Articles in Law

Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper Jan 2011

Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper

Articles

Professor Kenneth G. Dau-Schmidt, in his keynote address in this Symposium, Promoting Employee Voice in the American Economy: A Call for Comprehensive Reform, 1 joins a chorus of other scholars when he identifies a lack of employee voice in the workplace as a fundamental deficiency of contemporary American labor relations and recommends initiatives to remedy the problem. 2 Today's scholarly critiques and proposals directed at the problem of employee voice echo a flurry of commentaries that appeared in the late 1980s and early 1990s. These earlier critics bemoaned the absence of employee workplace voice, viewed Section 8(a)(2 ...


Dominance, Innovation, And Efficiency: Modifying Antitrust And Intellectual Property Doctrines To Further Welfare, Daniel J. Gifford Jan 2011

Dominance, Innovation, And Efficiency: Modifying Antitrust And Intellectual Property Doctrines To Further Welfare, Daniel J. Gifford

Articles

This Article examines a number of problematic areas in which the antitrust and intellectual property laws fail, or have failed, to attain the efficiency and welfare goals that underlie them. Although some of the areas in question have been separately analyzed in the literature, this Article focuses on them as a unitary group: one whose existence presents a challenge to the antitrust and intellectual property laws to develop a common approach by explicitly recognizing the maximization of aggregate social welfare as the goal of both sets of laws. This recognition would help courts resolve apparent conflicts in the applications of ...


Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman Jan 2011

Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman

Articles

Declaring a “war against terror,” the United States has detained foreign nationals suspected of terrorist activities and has interrogated them at various locations outside the United States. As the United States seeks to bring charges against the detainees, serious questions have arisen regarding the interrogation methods used to obtain evidence. Federal laws enacted to meet the United States' obligations under treaties prohibit the use of evidence obtained through torture or through cruel, inhuman, or degrading treatment. What legal standards should be applied to determine whether interrogation methods or conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Is ...


Regulatory Contrarians, Brett Mcdonnell, Daniel Schwarcz Jan 2011

Regulatory Contrarians, Brett Mcdonnell, Daniel Schwarcz

Articles

This Article explores the role that “regulatory contrarians” can play in promoting more adaptive financial regulation. Such contrarians have several distinguishing features. First, they possess persuasive authority by virtue of their position, access to media and officials, or speaking engagements and reports. Second, they are affiliated with, and enjoy privileged access to, a regulatory entity but are nonetheless independent, as reflected in their budget, staffing, and/or priorities. Finally, they are tasked with studying the regulatory process, policy positions, and the regulated market and in some way reporting on deficiencies and potential improvements. The Article argues that regulatory contrarians can ...


Of The Conditional Fee As A Response To Lawyers, Claire Hill, Richard W. Painter Jan 2011

Of The Conditional Fee As A Response To Lawyers, Claire Hill, Richard W. Painter

Articles

There are radically differing views as to whether Dodd-Frank took the right approach, and whether it will be successful or even beneficial. But even the most optimistic scenario leaves a significant problem unaddressed. One important cause of the crisis was that some banks and their lawyers had been looking for-and finding-clever ways to honor the letter of the law while violating its spirit, including by "pushing the envelope" as far as it will go (and in some cases, further). The legal opinion rendered in Lehman Brothers' Repo 105 transaction, discussed more fully below, is but one example of the type ...


Radbruch's Formula And Conceptual Analysis, Brian Bix Jan 2011

Radbruch's Formula And Conceptual Analysis, Brian Bix

Articles

Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its ...


Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs, Prentiss Cox Jan 2011

Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs, Prentiss Cox

Articles

Property Assessed Clean Energy (“PACE”) is a method of public financing for energy improvements through special assessments on local government property taxes. Interest in PACE exploded from its origination in 2008, with almost half the states rapidly enacted legislation enabling local governments to use their property collection power for this purpose. The growth in PACE is now suspended, and existing programs have been put on hold, in the face of opposition from the federal secondary mortgage market regulators. Governments and environmental advocates supporting PACE have initiated litigation against the federal regulators and are seeking passage of federal legislation to revive ...


Will Employers Undermine Health Care Reform By Dumping Sick Employees?, Amy B. Monahan, Daniel Schwarcz Jan 2011

Will Employers Undermine Health Care Reform By Dumping Sick Employees?, Amy B. Monahan, Daniel Schwarcz

Articles

This Article argues that federal health care reform may induce employers to redesign their health plans so that low-risk employees retain employer-sponsored insurance (“ESI”) but high-risk employees opt out of ESI in favor of insurance available on the individual market. It shows that such a strategy would shift health care expenses for high-risk employees from employers and their low-risk employees to the public at large. Not only would this undermine the spirit of health care reform, but it would jeopardize the sustainability of the insurance exchanges that are designed to organize individual insurance markets starting in 2014. In particular, it ...


Reevaluating Standardized Insurance Policies, Daniel Schwarcz Jan 2011

Reevaluating Standardized Insurance Policies, Daniel Schwarcz

Articles

This Article empirically debunks the common claim that homeowners insurance policies do not vary across different insurance carriers. It demonstrates that different carriers' homeowners policies differ radically with respect to numerous important coverage provisions. It also reports that a substantial majority of these deviations produce decreases in the amount of coverage relative to the presumptive industry standard, though some deviations increase coverage. Additionally, the Article describes the surprising absence of any mechanisms by which even informed and vigilant consumers could comparison shop among carriers on the basis of differences in coverage. It closes by reviewing various regulatory and judicial options ...


Competitiveness In State Supreme Court Elections, 1945-2009, Herbert M. Kritzer Jan 2011

Competitiveness In State Supreme Court Elections, 1945-2009, Herbert M. Kritzer

Articles

There has been much debate over changes in state supreme court elections. However, most of the research that debate refers to considers a relatively short time span. This paper reports an analysis of contestation and competitiveness in state supreme elections for the entire post-World War II period. The paper considers both primary and general elections (other than retention elections). The central finding of the paper is that outside the South there has in fact been surprising little change, either in whether incumbents are challenged for reelection or in the competitiveness of the elections that are contested (looking separately at open ...


The Antecedents Of Disputes: Complaining And Claiming, Herbert M. Kritzer Jan 2011

The Antecedents Of Disputes: Complaining And Claiming, Herbert M. Kritzer

Articles

This paper focuses on the earliest stages of the problem resolution function of law and legal institutions: the emergence of grievances and their communication to a responsible party as complaints and claims. While the literature on this subject is broad, both in terms of methods and in terms of the fairly large number of countries where empirical research on this subject has been conducted, it seems appropriate to ask the question, what do we know and not know about this subject? This paper seeks to answer this question and to suggest fruitful avenues of future inquiry. I first discuss the ...


Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer Jan 2011

Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer

Articles

This is a review essay considering two books: 'The Death of the American Trial' by Robert P. Burns and 'Specializing the Courts' by Lawrence Baum. The organizing theme of the essay is the lay jurors represent one end of the spectrum of potential adjudicators with specialized courts and tribunals represent the other end of the spectrum. While Burns does not develop his argument in terms of specialization, a significant aspect of his argument is that there is value to relying on nonspecialist, lay adjudicators. Burns is an advocate for the trials, particularly jury trials; as such, he glosses over evidence ...


Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort Jan 2011

Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort

Articles

As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in ...


Property Rights On The New Frontier: Climate Change, Natural Resource Development, And Renewable Energy, Alexandra B. Klass Jan 2011

Property Rights On The New Frontier: Climate Change, Natural Resource Development, And Renewable Energy, Alexandra B. Klass

Articles

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control ...


Why Didn't Subprime Investors Demand A (Much Larger) Lemons Premium?, Claire Hill Jan 2011

Why Didn't Subprime Investors Demand A (Much Larger) Lemons Premium?, Claire Hill

Articles

The subprime crisis would never have occurred had investors not been such enthusiastic consumers of subprime securities. The investors now say, somewhat self-servingly (but probably correctly), that they did not understand the securities - securities for which they were willing to pay very high prices. This essay seeks to explain investors’ readiness to pay premium prices for these novel and complex instruments. The most satisfactory explanation lies in the incentives for herding among agents who made investment decisions for others. Investors (and markets) compare investment managers to other investment managers. A manager’s best strategy, therefore, may be to do what ...


Constitutional Spaces, Allan Erbsen Jan 2011

Constitutional Spaces, Allan Erbsen

Articles

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the ...


Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin Jan 2011

Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin

Articles

The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from such catastrophes whatsoever their causes. Rhetorically too, there is some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are more visible in the refugee and internally displaced communities that typically result from many humanitarian crises. Women, because of their acute care responsibilities in most societies, also disproportionately bear the brunt of familial ...


Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser Jan 2011

Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser

Articles

This Article was written for a Fordham Law Review symposium on “Presidential Influence over Administrative Action, Recent Developments.” The Article explores developments in scientific integrity in the first two years of the Obama Administration. Specifically, it looks at the impact of “presidential administration” - that is, of top-down White House directives to administrative agencies - on scientific integrity. I define processes embodying scientific integrity as those designed to enable expert scientific findings to be presented without extra-scientific interference or distortion. Scientific integrity is a subset of information integrity. A system that facilitates information integrity is one that is relatively transparent and seeks ...


Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell Jan 2011

Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell

Articles

How should corporate law deal with a controlling person's entry into a transaction with the corporation she controls? How should corporate law deal with transactions or decisions where one or more board members are interested? In this Article, we argue that Delaware law could do a better job answering these questions than it presently does. We propose a modest strengthening of judicial review of interested transactions. For transactions where one or more directors have a conflicting interest and defendants attempt to cleanse the transaction using approval by the disinterested directors, we propose that the defendants show that the approving ...


Successor Liability, John H. Matheson Jan 2011

Successor Liability, John H. Matheson

Articles

The phrase mergers and acquisitions, or M&A for short, signifies both the business activity of growing (or divesting) corporate operations and the legal rules surrounding that activ- ity. One typical acquisition technique is the purchase of busi- ness assets by one company from another. Indeed, General Mo- tors and Chrysler utilized this transactional structure in their bankruptcy reorganization following the recent global financial crisis, with the United States Government as a part owner of the purchasing entities.1 Asset sales transactions have various benefits, one of which is that the purchaser presumptively does not assume any of the seller ...


Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell Jan 2011

Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell

Articles

This article compares two approaches to understanding and preventing financial crises, Austrian and Keynesian business cycle theory. The two are traditionally, and rightly, seen as having diametrically opposed prescriptions, with the Austrian approach opposing governmental intervention and blaming central bank policy for most crises, while the Keynesian approach advocates active governmental intervention to both prevent crises and to end them when they do occur. The article argues that both approaches nonetheless have much in common. Each emphasizes the importance of radical uncertainty in financial markets and analyzes business cycles as tied to credit cycles that turn on shifting investor expectations ...


Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter Jan 2011

Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter

Articles

In recent years, juries in some patent infringement suits have awarded prevailing patentees "reasonable royalty" damages in the eight-, nine-, and even ten-figure range. Though not all of these awards have been upheld following postjudgment motions or on appeal, concern over the magnitude and frequency of such awards has led to calls for the reform of various practices relating to the calculation of patent damages. Other voices, not surprisingly, have either defended the current system or, at the very least, expressed reservations over the need for significant changes. Underlying some of these debates are fundamental differences of opinion concerning the ...


Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell Jan 2011

Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell

Articles

One way to make U.S. corporations more sustainable is to broaden the group of stakeholders whose interests are considered in making decisions. This Essay evaluates a number of possible strategies for creating a role for employees in corporate governance. The strategies include: Using areas other than business association law to enhance the legal rights of individual employees; Encouraging officer or director power, hoping that officers and directors will side with employees and other interests more than shareholders; Encouraging shareholder power, hoping that employees agree with shareholders on the need to keep managers accountable; Supporting unions as a source of ...


Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky Jan 2011

Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky

Articles

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of ...


Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell Jan 2011

Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell

Articles

Recent developments in Delaware concerning shareholder bylaws and the SEC proposal concerning shareholder proxy access have moved the U.S. closer to a set of optimal rules for shareholder proxy access in nominating director candidates, but not all the way there. These rules must address both the default rule which applies in the absence of agreement within a corporation to the contrary, and the altering rule which specifies who within a corporation may choose to opt out of the default provisions. Applying principles of accountability and freedom of contract, the optimal default rule would allow for certain shareholders to use ...


Regional Strategies For Racial Integration Of Schools And Housing Post-Parents Involved, Myron Orfield Jan 2011

Regional Strategies For Racial Integration Of Schools And Housing Post-Parents Involved, Myron Orfield

Articles

No abstract provided.


State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox Jan 2011

State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox

Articles

Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation ...


Compromised Fiduciaries: Conflicts Of Interest In Government And Business, Claire Hill, Richard W. Painter Jan 2011

Compromised Fiduciaries: Conflicts Of Interest In Government And Business, Claire Hill, Richard W. Painter

Articles

In the present financial crisis, the government has become extensively involved in managing companies, at times undertaking massive bailouts. The results of government involvement in business are at best mixed. Moreover, its involvement has generated significant criticism. But government involvement in managing companies is sometimes inevitable. It is therefore important to consider how it can be improved. One critical reason why government might perform poorly is conflicts of interest. Given the conflicts that arise at multiple levels of decisionmaking in both government and private companies, it should not be surprising that government management of companies is often problematic. In both ...


The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt Jan 2011

The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt

Articles

The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of ...


The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt Jan 2011

The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt

Articles

In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped ...