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Series

Articles

University of Minnesota Law School

2014

Articles 1 - 22 of 22

Full-Text Articles in Law

Human Rights Standards Concerning Transnational Corporations And Other Business Entities, David Weissbrodt Jan 2014

Human Rights Standards Concerning Transnational Corporations And Other Business Entities, David Weissbrodt

Articles

The rapid expansion of transnational economic activity and corresponding growth in power of transnational corporations and other business entities have prompted renewed international discourse and action over the past decade to address the human rights abuses committed by businesses. 2 The responsibility of businesses to respect human rights has been at the heart of the discussion. The Universal Declaration of Human Rights (UDHR), adopted in 1948, states that "every individual and every organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms and ... to secure their universal and effective recognition and observance, both ...


Questioning Gender: Police Interrogation Of Delinquent Girls, Barry C. Feld Jan 2014

Questioning Gender: Police Interrogation Of Delinquent Girls, Barry C. Feld

Articles

Early juvenile courts emphasized a child's "best interests" and treated youths differently based on personal characteristics such as race and gender. 1 Progressive reformers expected judges to handle boys and girls differently because their circumstances and needs differed. 2 Juvenile courts processed boys primarily for criminal behavior and girls for noncriminal status offenses - e.g. runaway, incorrigibility, or sexual precocity. 3 In the 1970s, efforts to deinstitutionalize status offenders led to substantial declines in the numbers of girls detained and confined for noncriminal misconduct. 4 More recently, juvenile justice officials and the public perceived an increase in violent crimes ...


Why Crime Rates Are Falling Throughout The Western World, Michael Tonry Jan 2014

Why Crime Rates Are Falling Throughout The Western World, Michael Tonry

Articles

Crime rates have moved in parallel in Western societies since the late Middle Ages. Homicide rates declined from 20 to 100 per 100,000 population in western Europe to one per 100,000 in most Western countries by the beginning of the twentieth century. Crime rates in major cities and in countries fell from the early nineteenth century until the middle of the twentieth. From the 1960s to the 1990s, rates for violent and property crimes rose in all wealthy Western countries. Since then, rates in all have fallen precipitately for homicide, burglary, auto theft, and other property crimes. The ...


Guest Editor's Observations: Recurring Policy Issues Of Guidelines (And Non-Guidelines) Sentencing: Risk Assessments, Criminal History Enhancements, And The Enforcement Of Release Conditions, Richard Frase Jan 2014

Guest Editor's Observations: Recurring Policy Issues Of Guidelines (And Non-Guidelines) Sentencing: Risk Assessments, Criminal History Enhancements, And The Enforcement Of Release Conditions, Richard Frase

Articles

No abstract provided.


Regulating Systemic Risk In Insurance, Daniel Schwarcz, Steven L. Schwarcz Jan 2014

Regulating Systemic Risk In Insurance, Daniel Schwarcz, Steven L. Schwarcz

Articles

As exemplified by the dramatic failure of AIG, insurance companies and their affiliates played a central role in the 2008 global financial crisis. It is therefore not surprising that the Dodd-Frank Act — the United States’ primary legislative response to the crisis — contained an entire title dedicated to insurance regulation, which has traditionally been the responsibility of individual states. The most important insurance-focused reforms in Dodd-Frank empower the Federal Reserve Bank to impose an additional layer of regulatory scrutiny on top of state insurance regulation for a small number of “systemically important” nonbank financial companies, such as AIG. This Article argues ...


Understanding Insurance Antidiscrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz Jan 2014

Understanding Insurance Antidiscrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on their differences in risk profiles, first, so that they can charge different premiums to the different groups based on their risk and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are, however, limits to the types of discrimination we will allow insurers to engage in. But what exactly are those limits and how are they justified? To answer these questions, this Article articulates the leading fairness and efficiency arguments for and against limiting insurers ...


Transparently Opaque: Understanding The Lack Of Transparency In Insurance Consumer Protection, Daniel Schwarcz Jan 2014

Transparently Opaque: Understanding The Lack Of Transparency In Insurance Consumer Protection, Daniel Schwarcz

Articles

Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations or other market watchdogs. By contrast, command and control regulation that affirmatively limits financial firms’ products or pricing is relatively uncommon. This Article describes a remarkable inversion of this pattern: while state insurance regulation frequently employs aggressive command and control consumer protection regulation, it typically does little or nothing to promote transparent markets. Rather, state lawmakers routinely either completely ignore transparency-oriented reforms ...


An Exploration Of "Non-Economic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar Jan 2014

An Exploration Of "Non-Economic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Articles

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of ...


Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman Jan 2014

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

Articles

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as ...


Administering The Tax System We Have, Kristin Hickman Jan 2014

Administering The Tax System We Have, Kristin Hickman

Articles

Traditional perceptions of tax exceptionalism from administrative law doctrines and requirements have been predicated at least in part on the importance of the tax code’s revenue raising function. Yet, Congress increasingly relies on the IRS to administer government programs that have little to do with raising revenue and much more to do with distributing government benefits to the economically disadvantaged, subsidizing approved activities, and regulating outright certain economic sectors like nonprofits, pensions, and now health care. As the attentions of the Treasury Department and Internal Revenue Service shift away from raising revenue and toward these other matters, the revenue-based ...


The Geography Of Solving Global Environmental Problems: Reflections On Polycentric Efforts To Address Climate Change, Hari M. Osofsky Jan 2014

The Geography Of Solving Global Environmental Problems: Reflections On Polycentric Efforts To Address Climate Change, Hari M. Osofsky

Articles

This essay considers how we might fit local efforts to address climate change, especially those by very small, suburban cities, within models for solving "global problems." While acknowledging the need for more action on climate change at international, national, and state levels, and regional ones in between, this essay explores how different types of cities, as they participate in multilevel networks, can provide models for action and complement efforts to address climate change through the treaty regime. Using a diverse group of suburbs in the Twin Cities metropolitan region making innovative climate change and sustainability efforts as a case example ...


Complex Value Choices At The Environment-Energy Interface, Hari M. Osofsky Jan 2014

Complex Value Choices At The Environment-Energy Interface, Hari M. Osofsky

Articles

This dilemma of environment-energy decisions that have major positives and negatives from either a health or ecosystem perspective poses an important ethical challenge that this Essay explores. Namely, in many cases, one can value humans, species, and ecosystems, and still not be able to resolve the best way forward. The Essay focuses in particular on a core problem at the environment-energy interface: people demand cheap and reliable energy, which pushes us towards new technology or the massive expansion of existing technology, both of which carry risks and possibilities for a cleaner future. The Essay considers this dilemma in the U ...


Hybrid Energy Governance, Hari M. Osofsky, Hannah J. Wiseman Jan 2014

Hybrid Energy Governance, Hari M. Osofsky, Hannah J. Wiseman

Articles

This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical challenges. Energy law is substantively complex and deeply fragmented. Each energy sector - including fuel extraction and pipelines, electricity generation and transmission, and transportation - has its own legal regime and federalism approach; confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and ...


Statutory Reading Of Opaque Constructions - Errors And Purposes, Brian H. Bix Jan 2014

Statutory Reading Of Opaque Constructions - Errors And Purposes, Brian H. Bix

Articles

In her excellent article, Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation,1 Professor Jill Anderson explains an intri- cacy of sentence meaning that is well known by linguists, generally handled adequately by most of us in normal conversation, but appar- ently misunderstood and badly handled by lawyers and judges. The misreading in question is based on what linguists call “opaque con- structions”: texts whose structural ambiguity creates alternative read- ings. These alternative readings are generally known (as Anderson points out) as “de re” and “de dicto” interpretations. As the article clearly explains, opaque constructions differ from other sentences ...


Comparative Law And Economics Of Standard-Essential Patents And Frand Royalties, Thomas F. Cotter Jan 2014

Comparative Law And Economics Of Standard-Essential Patents And Frand Royalties, Thomas F. Cotter

Articles

Standard setting organizations often require their members to declare which of their patents are essential to the practice of a prospective standard, and to agree to license any such standard-essential patents (SEPs) on "fair, reasonable, and nondiscriminatory" (FRAND) terms. Among the issues that have arisen in recent disputes involving FRAND-encumbered SEPs are (1) whether a FRAND commitment creates a binding contract for the benefit of third parties, obligating the SEP owner to forgo the right to seek injunctive relief for the infringement of the SEP; (2) whether the law of remedies, or other principles of generally applicable civil law such ...


Legal And Ethical Issues In The Prediction Of Recidivism, Michael Tonry Jan 2014

Legal And Ethical Issues In The Prediction Of Recidivism, Michael Tonry

Articles

Use of predictions of recidivism is ubiquitous in American criminal justice systems from pretrial detention to parole release and proceeds largely oblivious to fundamental ethical problems that were widely recognized and examined in the 1970s. They include the false positive problem that most people predicted to commit acts of serious violence would not, and their confinement for that reason is unjustified, that common use of fixed characteristics such as age and gender punish people for matters over which they have no control is per se unjust, that commonly used socioeconomic factors such as marital status, employment, education, and living discrimination ...


Response Essay: The Personhood Rationale And Its Impact On The Durability Of Private Claims To Public Property, Alexandra Klass Jan 2014

Response Essay: The Personhood Rationale And Its Impact On The Durability Of Private Claims To Public Property, Alexandra Klass

Articles

No abstract provided.


Compliance Of The United States With International Labor Law, David Weissbrodt, Matthew Mason Jan 2014

Compliance Of The United States With International Labor Law, David Weissbrodt, Matthew Mason

Articles

The article focuses on the U.S. compliance with international labor law in 2014. Topics include the U.S. membership in the International Labour Organization (ILO), the number of labor conventions followed by the U.S. in 2014, and labor laws and legislation in the U.S. in 2014. Information is provided on ILO standards, including the right to organize, the rights of noncitizen workers, and workers' rights of collective bargaining and strikes.


Committing To Doing Good And Doing Well: Fiduciary Duty In Benefit Corporations, Brett Mcdonnell Jan 2014

Committing To Doing Good And Doing Well: Fiduciary Duty In Benefit Corporations, Brett Mcdonnell

Articles

Can someone running a business do good while doing well? Can they benefit society and the environment while still making money? Supporters of social enterprises believe the answer is yes, as these companies aim at both making money for shareholders while also pursuing other social benefits. Since 2010, states have begun to enact statutes creating the “benefit corporation” as a new legal form designed to fit social enterprises. Benefit corporations proclaim to the world that they will pursue both social good and profits, and those who run them have a fiduciary duty to consider a broad range of social interests ...


Ftc V. Actavis, Inc.: When Is The Rule Of Reason Not The Rule Of Reason?, Thomas F. Cotter Jan 2014

Ftc V. Actavis, Inc.: When Is The Rule Of Reason Not The Rule Of Reason?, Thomas F. Cotter

Articles

The U.S. Supreme Court’s recent decision in FTC v. Actavis, Inc. brings some resolution to the decade-long dispute over the level of antitrust scrutiny that is appropriate for evaluating the legality of "reverse-payment" or "pay-for-delay" agreements settling pharmaceutical patent infringement litigation between brand-name and generic drug companies. Writing for a 5-3 majority in Actavis, Justice Breyer rejected both the scope-of-the-patent test and the presumptive illegality approach, and held instead that courts should review reverse-payment settlements under the rule of reason. Or say the opinion states. In reality, the Court appears to have all but in name adopted the ...


The Three Phases Of Mead, Kristin Hickman Jan 2014

The Three Phases Of Mead, Kristin Hickman

Articles

No symposium entitled ―Chevron at 30‖ would be complete without some consideration of the U.S. Supreme Court‘s subsequent decision in United States v. Mead Corp.3 As Thomas Merrill and I documented years ago, in the years leading up to Mead, courts were in substantial disarray over which agencies and actions were eligible for Chevron‘s requirement of strong, mandatory deference.4 Some disagreements concerned the nature and scope of agency authority. For example, the federal circuit courts were divided over whether an agency that lacked the power to adopt legislative rules could claim Chevron deference for its ...


Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz Jan 2014

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can ...