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

Law Commons

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

Series

Articles

2011

Discipline
Institution
Keyword

Articles 1 - 30 of 247

Full-Text Articles in Law

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan Dec 2011

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle ...


Craig Callen: Tributes From The Evidence Community, Richard D. Friedman Dec 2011

Craig Callen: Tributes From The Evidence Community, Richard D. Friedman

Articles

At the wonderful memorial service for Craig Callen held at MSU shortly after his death in April, I had the honor, by reason of proximity, to appear in effect as the representative of nationwide, and even worldwide, community of scholars that has felt his death very deeply. I am grateful for the opportunity to perform this same function in print.


Rethinking Merger Efficiencies, Daniel A. Crane Dec 2011

Rethinking Merger Efficiencies, Daniel A. Crane

Articles

The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable ...


The Police Gamesmanship Dilemma, Mary D. Fan Jun 2011

The Police Gamesmanship Dilemma, Mary D. Fan

Articles

Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal ...


Government Policies Must Keep Business On Tight Rein, Paul Donnelly, John Hogan, Brendan O'Rourke Feb 2011

Government Policies Must Keep Business On Tight Rein, Paul Donnelly, John Hogan, Brendan O'Rourke

Articles

The unethical behaviour that helped create the economic and banking crisis has caught the attention of some parties.


An Old-Fashioned View Of The Nature Of Law, James Boyd White Jan 2011

An Old-Fashioned View Of The Nature Of Law, James Boyd White

Articles

The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the ...


The Once And Future Equal Protection Doctrine?, Mario L. Barnes, Erwin Chemerinsky Jan 2011

The Once And Future Equal Protection Doctrine?, Mario L. Barnes, Erwin Chemerinsky

Articles

This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court's present approach to adjudicating constitutional discrimination claims. With regard to the meaning of equality, we assert that if the text of the Reconstruction Amendments and the stated goals of Reconstruction are used to inform constitutional analysis, then equality should be understood as a substantive rather than formalist concept. Reconstruction, however ...


Getting The "Story" Out: Teaching Admiralty At The University Of Washington, Craig H. Allen Jan 2011

Getting The "Story" Out: Teaching Admiralty At The University Of Washington, Craig H. Allen

Articles

I count myself fortunate indeed to be a law teacher and to have the privilege of teaching admiralty to the next generation of attorneys. My good fortune is compounded by the fact that I teach admiralty (and several other maritime law courses) at the University of Washington, a major research university with a complementary graduate level School of Marine Affairs. There is no finer venue for studying maritime law than the state of Washington. By any measure, Washington is among the most “marine” and most trade-dependent states in the nation, and it has long been home to a distinguished maritime ...


Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen Jan 2011

Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen

Articles

In the aftermath of the Deepwater Honrzon oil spill of 2010, Prsident Obama uged Congess to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmosphenc Administration with the standard of judicial review prescrbed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional ...


Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan Jan 2011

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Articles

Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent ...


Electronic Chattel Paper: Invitation Accepted, Jane K. Winn Jan 2011

Electronic Chattel Paper: Invitation Accepted, Jane K. Winn

Articles

In 1999, Revised U.C.C. Article 9 governing secured lending was updated to permit the creation of "electronic chattel paper" ("ECP"). Traditional chattel paper is used widely in some sectors of the US economy to finance equipment purchases in part because a chattel paper financers who perfects by taking possession can achieve priority over a pre-existing secured lender who perfected by filing. Revised U.C.C. § 9-105 defined a new form of "control" over ECP that would be treated as equivalent to possession of traditional chattel paper, permitting chattel paper financers to retain their superpriority status with electronic documents ...


The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor Jan 2011

The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor

Articles

The discovery and commercialization of biotechnology innovations often rely on collaborations between universities and for-profit firms. In the United States, the federal government funds much of university life sciences research and, under the Bayh-Dole Act, has some rights to research arising from that funding.

Two important strands of invention ownership issues in this web of collaboration arose under litigation that culminated in the recent United States Supreme Court decision Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc. (“Stanford v. Roche” or “Stanford”). The first is the question of whether Bayh-Dole trumps any other invention assignment ...


Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson Jan 2011

Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson

Articles

In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.

While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The ...


Beyond The Guantánamo Bind: Pragmatic Multilateralism In Refugee Resettlement, Melissa J. Durkee Jan 2011

Beyond The Guantánamo Bind: Pragmatic Multilateralism In Refugee Resettlement, Melissa J. Durkee

Articles

A group of detainees remains in the detention facility at the U.S. naval station in Guantánamo Bay, Cuba (“Guantánamo”) almost a decade after the facility began to hold suspected combatants arrested in connection with the U.S. conflict in Afghanistan. As U.S. officials have acknowledged, in many cases these supposed combatants turned out to have no connection to al Qaeda or terrorism. Many were foreigners who had fled home countries to escape persecution and lived as undocumented aliens in Afghanistan or Pakistan. When the United States began its military campaign in Afghanistan and offered bounties for the arrest ...


Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld Jan 2011

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

Articles

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a ...


The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr. Jan 2011

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

Articles

This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common ...


Common Law Same-Sex Marriage, Peter Nicolas Jan 2011

Common Law Same-Sex Marriage, Peter Nicolas

Articles

In this Essay, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage.

In the Essay, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in these three jurisdictions, and I explain and compare the criteria for entering into common law marriages in each ...


The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas Jan 2011

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Articles

In this Article, I explore the division in the courts over the question of whether same-sex sexual conduct constitutes adultery in four contexts: (1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil tort actions for interference with the marital relationship, and (4) murder cases raising a provocation defense based on a spouse's act of adultery.

In so doing, I arrive at the following conclusions. First, as illustrated in Part I, there is a significant overlap between states that recognize same-sex marriage and states where adulterous conduct is legally relevant, making this more than an interesting theoretical exercise. Second ...


Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy Jan 2011

Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy

Articles

As with all institutions, the history, character, identity, and accomplishments of each law school are the direct result of its people and their acts. For that simple reason, diversity is critical; it goes to the very core of what the institution is and what it does. With legal institutions, in particular, diversity plays a critical role in shaping the perception of the institution held by persons outside of it. In order for our system of law to function as the bedrock of our democratic society that it aims to be, legal institutions must be perceived as fair and just. If ...


A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka Jan 2011

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.


Revisiting Trial Basics Every Time: A Ritual For Courtroom Success, Maureen A. Howard Jan 2011

Revisiting Trial Basics Every Time: A Ritual For Courtroom Success, Maureen A. Howard

Articles

With fewer cases progressing to trial, many attorneys do not have adequate opportunities to practice the skills necessary to be successful in the courtroom. Here the author provides a useful and uncomplicated examination of the basic trial advocacy skills, which should be reviewed each time an attorney prepares for trial. Writing for the busy practicing attorney, the author concisely addresses six key stages of trial: voir dire, opening statement, direct examination, cross-examination, impeachment, and closing argument.


Taking Better Depositions By Thinking "Outside The Box", Maureen A. Howard Jan 2011

Taking Better Depositions By Thinking "Outside The Box", Maureen A. Howard

Articles

While there are reasons a lawyer may ask questions in a deposition to confirm what she thinks she already knows—nailing down facts for a summary judgment motion, confirming factual and legal theories, perpetuating a witness’s testimony, or facilitating settlement by flexing favorable facts—gathering information the lawyer does not know remains the primary goal of almost every deposition. Despite this, lawyers too often ask questions based on what they already know, limiting the universe of answers and undermining the goal of gathering information.

By the time a lawyer notes depositions, she has already built a “working model” of ...


Surviving (And Thriving) In The First Year Of Trial Practice, Maureen A. Howard Jan 2011

Surviving (And Thriving) In The First Year Of Trial Practice, Maureen A. Howard

Articles

The substance and procedure of trial practice may vary across different law firms and agencies, but there are certain challenges that all first-year trial lawyers face when starting out. No matter how brilliant and capable a newly minted attorney may be, there are some lessons more indelibly learned on the job than in law school; while these lessons are undoubtedly valuable, they can be painful and embarrassing. Although reading about the possible pitfalls of the first year of trial practice is not as educational as walking through the fire oneself, I have collected over the years a few tips and ...


Smooth Courtroom Moves: The "Exhibit Dance", Maureen A. Howard Jan 2011

Smooth Courtroom Moves: The "Exhibit Dance", Maureen A. Howard

Articles

Current court rules often require parties to identify proposed exhibits in advance of trial, as well as objections to the other side’s evidence, so the judge can make pretrial rulings on admissibility issues (e.g., FRCP 26). This practice saves precious trial time, minimizes the time that jurors are banished during sidebar discussions between judge and counsel, eliminates in large measure surprises about how the evidence will shape up at trial, and arguably promotes settlement. It also allows the exhibits to be pre-marked for identification, further streamlining the trial process.

Nonetheless, trial lawyers still need to be able to ...


Effective Pre-Trial Motions: Persuading The Judge, Maureen A. Howard Jan 2011

Effective Pre-Trial Motions: Persuading The Judge, Maureen A. Howard

Articles

Victories won in pre-trial motions can significantly affect the direction and outcome of a trial. For this reason, successful trial lawyers prepare for motions with the same thoroughness that they employ for the trial itself. Arguing a motion to a trial judge, however, is different from arguing your case to a jury; to be effective, an advocate needs to be mindful of the difference.

Judges generally resist what they perceive as emotional manipulation, theatrics, or excessive rhetoric. Many judges expect lawyers to cleanly and succinctly argue the facts and the law without employing any appeal to emotion. That being said ...


The Asymmetry Of Duty In Criminal Trial Practice, Maureen A. Howard Jan 2011

The Asymmetry Of Duty In Criminal Trial Practice, Maureen A. Howard

Articles

Although the American trial system has been likened to an arena in which mental combatants fight “to the death” (the verdict), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different than that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

A lawyer who represents an individual client is duty-bound to advance that client’s interests vigorously within the bounds of the ...


Foreword: Latcrit Theory, Narrative Tradition And Listening Intently For A "Still Small Voice", Mario L. Barnes Jan 2011

Foreword: Latcrit Theory, Narrative Tradition And Listening Intently For A "Still Small Voice", Mario L. Barnes

Articles

No abstract provided.


Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz Jan 2011

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

Articles

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law.

The global demand for intellectual property law-trained lawyers triggered a "big bang" in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in ...


Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita K. Krug Jan 2011

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita K. Krug

Articles

This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients.

However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors' relationships to investment advisers. Consistent with that failure, investment adviser regulation ...


The Boundaries Of Privacy Harm, M. Ryan Calo Jan 2011

The Boundaries Of Privacy Harm, M. Ryan Calo

Articles

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a ...