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2010

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Institution
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Articles 1 - 30 of 199

Full-Text Articles in Law

Traveling Concepts: Substantive Equality On The Road, Susanne Baer Sep 2010

Traveling Concepts: Substantive Equality On The Road, Susanne Baer

Articles

Ideas travel. Even legal concepts migrate on the globe. However, it is a contested issue whether migration is a good idea. We may enjoy traveling ourselves, but many people in the world of law are somewhat worried if we take legal baggage along. Some claim that legal baggage never arrives at its destination and challenge the very possibility of what some call a legal transplant. Others claim that we already live in transnational legal contexts, while still others claim that migration occurs, and that modifies each legal concept on the road in rather significant ways, which may render the project ...


The Hydra, Carl E. Schneider Jul 2010

The Hydra, Carl E. Schneider

Articles

Almost nobody favors long consent forms for prospective research subjects. Almost everybody thinks they interfere with informed consent's purpose-good decisions. Nevertheless, almost everybody believes consent forms have long been getting longer. Years ago, Paul Appelbaum lamented the "tendency to cram ever more information into consent forms." Weeks ago, Ilene Albala and her colleagues (one of them Appelbaum) reported in IRE: Ethics & Human Research that the length of one institutional review board's forms "increased roughly linearly by an average of 1.5 pages per decade. In the 1970s, the average consent form was less than one page long and ...


Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan Apr 2010

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

Articles

The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship ...


The Approach Of The Committee On The Elimination Of Racial Discrimination To Interpreting And Applying International Humanitarian Law, David Weissbrodt Jan 2010

The Approach Of The Committee On The Elimination Of Racial Discrimination To Interpreting And Applying International Humanitarian Law, David Weissbrodt

Articles

The four Geneva Conventions 1 and the two Additional Protocols of 1977 2 generally lack authoritative mechanisms for interpretation. Interpretation and application of these treaties are principally left to the judgment of the states that are parties to the Geneva Conventions and Protocols 3 and, increasingly, to the International Criminal Court and international tribunals. 4 The International Committee of the Red Cross (ICRC) encourages states parties to comply with their obligations under humanitarian law, but it is not an adjudicative body 5 and rarely publishes its authoritative interpretations of the Geneva Conventions and Protocols. 6 Article 90 of Additional Protocol ...


Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty Jan 2010

Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty

Articles

During the 1990s, the news media saturated the American public with stories and images of glassy-eyed, teenaged “superpredators,” who allegedly killed and maimed for sport. These violent, dark and “morally impoverished” youth were running wild in our city streets was the message, and unless we did something, they would destroy the very moral fabric of our society. Drawing on recent social science studies, which demonstrate that the graphic and racialized content of crime news coverage can increase consumers’ cognitive bias in imperceptible, but determinative ways, I argue that exposure to the “superpredator” narrative may have had a discernable impact on ...


The Law And Economics Of Price Discrimination In Modern Economies: Time For Reconciliation?, Daniel J. Gifford, Robert T. Kudrle Jan 2010

The Law And Economics Of Price Discrimination In Modern Economies: Time For Reconciliation?, Daniel J. Gifford, Robert T. Kudrle

Articles

This paper examines the forms, goals, and results of price discrimination. It reviews various economic analyses and critiques of the three Pigovian types of price discrimination. It observes that economists' traditional concern with aggregate welfare has not, until recently, been accompanied by a similar concern by lawyers. Until the late twentieth century lawyers tended to focus on "fairness" instead. These different concerns have impeded mutual understanding, as have the various meanings that lawyers and economists have attributed to such basic terms as "monopoly power," "market power" and "competition" in the price discrimination context. The paper examines the principal laws of ...


Let's Try This Again: The Ada Amendments Act Of 2008 Attempts To Reinvigorate The "Regarded As" Prong Of The Statutory Definition Of Disability, Stephen F. Befort Jan 2010

Let's Try This Again: The Ada Amendments Act Of 2008 Attempts To Reinvigorate The "Regarded As" Prong Of The Statutory Definition Of Disability, Stephen F. Befort

Articles

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let ...


Berle's Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard W. Painter Jan 2010

Berle's Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard W. Painter

Articles

This paper, published in a symposium on the work of Adolf Berle, approaches the Berle-Dodd debate from the perspective that corporate managers have responsibilities beyond pursuing the interests of shareholders. Stock based executive compensation, designed to align managers’ interests with those of shareholders, has, in the investment banking industry in particular, failed to avert, and may have caused, managers to take excessive risks that in the 2008 financial crisis inflicted great damage on creditors and on society as a whole. We describe here the broad outlines of a proposal that we will discuss in future publications in more detail to ...


Custody Investigations In Divorce-Custody Litigation, Robert Levy Jan 2010

Custody Investigations In Divorce-Custody Litigation, Robert Levy

Articles

Divorce custody litigation has been a social success. Despite the continuing complaints of participants-judges, lawyers, social and behavioral experts, the parents-the vast majority of couples who want to terminate their marriages and allocate control and responsibility for their children have been able to accomplish their goals relatively efficiently. And, if the law and government actors have not been terribly successful or efficient in resolving parental custody disputes that the parents' lawyers have not been able to settle, it has not been for lack of trying. Custody litigation is difficult, emotional, and unrewarding, for all participants (even financially, lawyers claim, because ...


It Came From Beneath The Twilight Zone: Wiretapping And Article Ii Imperialism, Heidi Kitrosser Jan 2010

It Came From Beneath The Twilight Zone: Wiretapping And Article Ii Imperialism, Heidi Kitrosser

Articles

This Article was written for the 2010 Texas Law Review Symposium: National Security, Privacy, and Technological Change. Using the example of federal government wiretapping, the Article examines “exclusivist” invocations of evolving U.S. history. Exclusivity is the view that the President has a constitutional power to circumvent statutory restrictions that interfere with his judgment as to how best to protect national security. In addition to arguing from text, structure, and founding era history, exclusivists sometimes invoke post-founding, or evolving history to defend their position. In the case of the Bush Administration’s warrantless wiretapping program, for example, the administration and ...


Insurance Demand Anomalies And Regulation, Daniel Schwarcz Jan 2010

Insurance Demand Anomalies And Regulation, Daniel Schwarcz

Articles

No abstract provided.


Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz Jan 2010

Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz

Articles

In recent years, it has become increasingly clear that Expected Utility Theory (EUT) is a remarkably poor theory of how and why individuals purchase insurance. However, the normative implications of this conclusion have remained largely unexplored. This Article takes up this issue. It argues that many observed deviations from EUT are likely the result of mistakes, in the sense that consumers would act differently than they do if they possessed perfect information and cognitive resources. From this perspective, regulatory interventions designed to improve consumer decision-making about insurance are potentially desirable. At the same time, the Article argues that some deviations ...


Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz Jan 2010

Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz

Articles

In both corporate and banking law, firms are empowered to select from a limited menu of options the regulatory regimes that will govern them. Two recent proposals would reform the regulation of property, casualty and life insurance markets by empowering insurers to make similar choices among multiple regulators. This Article argues that such regulatory competition is undesirable. Insurers operating in such a regime would tend to choose the least intrusive regulators, irrespective of whether doing so benefited consumers, third-parties, or even the collective interests of insurers themselves. The resulting decrease in regulatory scrutiny would, in fact, harm insurance markets and ...


Examining The Real Demand For Legal Services, Herbert M. Kritzer Jan 2010

Examining The Real Demand For Legal Services, Herbert M. Kritzer

Articles

Legal needs studies repeatedly show that low and modest income Americans obtain legal assistance for only a small percentage of their legal needs. This is taken to demonstrate a failing of the American justice system. However, relying on several older studies and research conducted outside the United States, one finds that there is little relationship between income and obtaining legal assistance once one controls for type of legal problem (and amount at stake). This paper argues that in thinking about legal needs, one must have a realistic baseline and the simple count of legal problems does not provide that baseline ...


State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass Jan 2010

State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass

Articles

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions ...


National Security And The Article Ii Shell Game, Heidi Kitrosser Jan 2010

National Security And The Article Ii Shell Game, Heidi Kitrosser

Articles

This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is “presidential exclusivity,” which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution to override statutory limits that he believes interfere with his ability to protect national security. The first question that this essay takes up is why exclusivity has come so far over the past several ...


Concepts, Categories, And Compliance In The Regulatory State, Kristin Hickman, Claire Hill Jan 2010

Concepts, Categories, And Compliance In The Regulatory State, Kristin Hickman, Claire Hill

Articles

Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that they can only be explained or understood by reference to history. At its (perhaps caricatured) extreme, such a regime is one in which regulated parties expend significant efforts attempting to comply with the law and often succeed in complying at the most minimal level possible, to the point that compliance is perceived as optional and ...


Impersonal Jurisdiction, Allan Erbsen Jan 2010

Impersonal Jurisdiction, Allan Erbsen

Articles

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism - the constitutional relationship between states - should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence ...


Why Did Rating Agencies Do Such A Bad Job Rating Subprime Securities?, Claire Hill Jan 2010

Why Did Rating Agencies Do Such A Bad Job Rating Subprime Securities?, Claire Hill

Articles

Why did rating agencies do such a bad job rating subprime securities? The conventional answer draws heavily on the fact that ratings are paid for by the issuers: Issuers could, and do, “buy” high ratings from willing sellers, the rating agencies. The conventional answer cannot be wholly correct or even nearly so. Issuers also pay rating agencies to rate their corporate bond issues, yet very few corporate bond issues are rated AAA. If the rating agencies were selling high ratings, why weren’t high ratings sold for corporate bonds? Moreover, for some types of subprime securities, a particular rating agency ...


A Burkean Perspective On Patent Eligibility, Part Ii: Reflections On The (Counter)Revolution In Patent Law, Thomas F. Cotter Jan 2010

A Burkean Perspective On Patent Eligibility, Part Ii: Reflections On The (Counter)Revolution In Patent Law, Thomas F. Cotter

Articles

In 2007, I published an essay in the Berkeley Technology Law Journal, titled A Burkean Perspective on Patent Eligibility, in which I discussed how the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office had discarded various doctrines relating to patent eligibility - among them, rules that all patentable inventions must pertain to the technological arts, that they may not read on mental steps, and that patentable processes must effect a physical transformation - in favor of an approach that asked only whether an invention had practical utility and was predictable in its effects ...


Optimal Fines For False Patent Marking, Thomas F. Cotter Jan 2010

Optimal Fines For False Patent Marking, Thomas F. Cotter

Articles

Since January 1, 2010, plaintiffs have filed over three hundred lawsuits under 35 U.S.C. § 292, the false patent marking statute. Fueled in large part by recent Federal Circuit case law embracing an expansive interpretation of the statute, this uptick has alarmed some observers, who fear that patent owners whose products bear the numbers of expired or inapplicable patents could be liable for, literally, billions of dollars in fines. While Congress and the courts consider various responses, one issue that has failed to attract much notice thus far is the question of how to calculate appropriate fines for marking ...


Book Review, David Weissbrodt Jan 2010

Book Review, David Weissbrodt

Articles

No abstract provided.


The Invisible Hand Of Preacquired Account Marketing, Prentiss Cox Jan 2010

The Invisible Hand Of Preacquired Account Marketing, Prentiss Cox

Articles

Preacquired account marketing is a sales practice that allows companies to charge consumers for services they do not know they ordered and do not use. The practice depends on a seller's ability to access a consumer's financial account without the consumer directly providing her account number and other access information to that seller. This flips the power dynamic in the solicitation process by shifting the burden to the consumer to stop the seller from accessing her account, rather than requiring the seller to ask the consumer for her account information before her account can be charged. This is ...


Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd Jan 2010

Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd

Articles

Few areas of law are as deeply implicated with science and technology as environmental law, yet we have only a cursory understanding of how science and technology shape the field. Environmental law, it seems, has lost sight of the constitutive role that science and technology play in fashioning the problems that it targets for regulation. Too often, the study and practice of environmental law and governance take the object of governance--be it climate change, water pollution, biodiversity, or deforestation--as self-evident, natural, and fully-formed without recognizing the significant scientific and technological investments that go into making such objects and the manner ...


Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd Jan 2010

Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd

Articles

The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little ...


Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding Jan 2010

Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding

Articles

This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the ...


Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff Jan 2010

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Articles

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from ...


Legal Transitions And The Problem Of Reliance, David M. Hasen Jan 2010

Legal Transitions And The Problem Of Reliance, David M. Hasen

Articles

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the ...


State Responsibility In Promoting Environmental Corporate Accountability, Lakshman Guruswamy Jan 2010

State Responsibility In Promoting Environmental Corporate Accountability, Lakshman Guruswamy

Articles

No abstract provided.


The Relevance Of Results Generated By Human Indexing And Computer Algorithms: A Study Of West's Headnotes And Key Numbers And Lexisnexis's Headnotes And Topics, Susan Nevelow Mart Jan 2010

The Relevance Of Results Generated By Human Indexing And Computer Algorithms: A Study Of West's Headnotes And Key Numbers And Lexisnexis's Headnotes And Topics, Susan Nevelow Mart

Articles

This article begins the investigation into the different ways results are generated in West's "Custom Digest" and in LexisNexis's "Search by Topic or Headnote" and by KeyCite and Shepard's. The author took ten pairs of matching headnotes from important federal and California cases and reviewed the results sets generated by each classification and citator system for relevance. The differences in the results sets for classification systems and for citator systems raise interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly