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2015

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Institution
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Full-Text Articles in Law

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue Dec 2015

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

Articles

Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to discounting premium rates for insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law ...


What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz Nov 2015

What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz

Articles

Two years ago, United States u. Windsor tossed out the Defense of Marriage Act ("DOMA"). Thereafter, proponents of marriage equality secured dozens of notable victories in the lower courts, a smattering of setbacks, and last June, the victory they sought in Obergefell v. Hodges. During this same period, opponents of electoral restrictions such as voter identification have seen far less sustained success. Decided the day before Windsor, Shelby County v. Holder scrapped a key provision of the Voting Rights Act ("VRA") while making clear that plaintiffs might still challenge disputed voting regulations under Section 2 of the VRA and the ...


Wrongs, Rights, And Third Parties, Nicholas Cornell Oct 2015

Wrongs, Rights, And Third Parties, Nicholas Cornell

Articles

In philosophical and legal arguments, it is commonly assumed that a person is wronged only if that person has had a right violated. This assumption is often viewed almost as a necessary conceptual truth: to be wronged is to have one's right violated, and to have a right is to be one who stands to be wronged. I will argue that this assumption is incorrect—that having a right and standing to be wronged are distinct and separable moral phenomena.

My argument begins from cases in which third parties are affected by the violation of someone else's rights ...


Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr Oct 2015

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute ...


Contemporary Practice Of The United States Relating To International Law., Kristina Daugirdas, Julian Davis Mortenson Oct 2015

Contemporary Practice Of The United States Relating To International Law., Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Agreement on Iran Nuclear Program Goes into Effect • United States and China Reach Agreement Regarding Economic Espionage and International Cybersecurity Norms • United States Ratifies the International Convention for the Suppression of Acts of Nuclear Terrorism • United States Reaches Agreement with Turkey on Use of Incirlik Air Base for Strikes on ISIL; “Safe Zone” Not Part of the Deal


A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar Oct 2015

A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar

Articles

I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.


The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue Oct 2015

The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue

Articles

Catastrophes from severe weather are perhaps the costliest accidents humanity faces. While we are still a long way from technologies that would abate the destructive force of storms, there is much we can do to reduce their effect. True, we cannot regulate the weather, but through smart governance and correct incentives we can influence human exposure to the risk of bad weather. We may not be able to control wind or storm surge, but we can prompt people to build sturdier homes with stronger roofs far from floodplains. We call these catastrophes "natural disasters," but they are the result of ...


Three Words And The Future Of The Affordable Care Act, Nicholas Bagley Oct 2015

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

Articles

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort ...


With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner Oct 2015

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

Articles

This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world. Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71 %, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because ...


Balancing Effects Across Markets, Daniel A. Crane Oct 2015

Balancing Effects Across Markets, Daniel A. Crane

Articles

In Philadelphia National Bank (PNB), the Supreme Court held that it is improper to weigh a merger's procompetitive effects in one market against the merger's anticompetitive effects in another. The merger in question, which ostensibly reduced retail competition in the Philadelphia area, could not be justified on the grounds that it increased competition against New York banks and hence perhaps enhanced competition in business banking in the mid-Atlantic region. I will refer to the Supreme Court's prohibition on balancing effects across markets as a "market-specificity" rule. Under this rule, efficiencies that may counterbalance anticompetitive aspects must be ...


Diagnostics Need Not Apply, Rebecca S. Eisenberg Sep 2015

Diagnostics Need Not Apply, Rebecca S. Eisenberg

Articles

Diagnostic testing helps caregivers and patients understand a patient's condition, predict future outcomes, select appropriate treatments, and determine whether treatment is working. Improvements in diagnostic testing are essential to bringing about the long-heralded promise of personalized medicine. Yet it seems increasingly clear that most important advances in this type of medical technology lie outside the boundaries of patent-eligible subject matter. The clarity of this conclusion has been obscured by ambiguity in the recent decisions of the Supreme Court concerning patent eligibility. Since its 2010 decision in Bilski v. Kappos, the Court has followed a discipline of limiting judicial exclusions ...


Internet Payment Blockades, Annemarie Bridy Sep 2015

Internet Payment Blockades, Annemarie Bridy

Articles

Internet payment blockades are an attempt to enforce intellectual property rights by "following the money" that flows to online merchants who profit from piracy and counterfeiting. Where corporate copyright and trademark owners failed in the legislature and the judiciary to create binding public law requiring payment processors like MasterCard and Visa to act as intellectual property enforcers, "non-regulatory" intervention from the executive branch secured their cooperation as a matter of private ordering. The resulting voluntary best practices agreement prescribes a notice-and-termination protocol that extends the reach of U.S. intellectual property law into cyberspace, to merchants operating "foreign infringing sites ...


The Institutional Appetite For Quack Corporate Governance, Alicia J. Davis Sep 2015

The Institutional Appetite For Quack Corporate Governance, Alicia J. Davis

Articles

This Article offers evidence that higher quality internal corporate governance is associated with higher levels of ownership by institutional investors. This finding is consistent with the idea that institutions have greater reason than individual investors to prefer well-governed firms, but surprising given the substantial empirical evidence that casts doubt on the efficacy of internal governance mechanisms. The study described in this Article also finds that higher quality external governance is associated with lower proportions of ownership by certain types of institutional investors, also a somewhat surprising result given available empirical evidence on the positive relationship between external governance and firm ...


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jul 2015

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Adjusts Aid to Egypt in Light of Legal and Political Developments • P51 and Iran Reach Agreement on Iranian Nuclear Program; Obama Administration Seeks Congressional Approval • United States Authorizes New Sanctions Program Aimed at Foreign Perpetrators ofCyberattacks and Cyberexploits • Normalization of Cuba-U.S. Relations Continues • U.S. Navy Continues Freedom of Navigation and Overflight Missions in the South China Sea Despite China’s “Island-Building” Campaign • U.S. Department of Justice Charges Leaders of FIFA, Affiliate Soccer Organizations, and Sports Marketing Companies in 47-Count Indictment


The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine Jul 2015

The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine

Articles

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of ...


Review: International Environmental Law: The Practitioner's Guide To The Laws Of The Planet, Anastasia Telesetsky Jul 2015

Review: International Environmental Law: The Practitioner's Guide To The Laws Of The Planet, Anastasia Telesetsky

Articles

No abstract provided.


Answering Halliburton Ii's Unanswered Question: Burdens Of Production And Persuasion On Price Impact At Class Certification, Wendy Gerwick Couture Jul 2015

Answering Halliburton Ii's Unanswered Question: Burdens Of Production And Persuasion On Price Impact At Class Certification, Wendy Gerwick Couture

Articles

No abstract provided.


Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan Jun 2015

Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan

Articles

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of ...


Of Property Rights And Rights To Property, James E. Krier Jun 2015

Of Property Rights And Rights To Property, James E. Krier

Articles

In 2004, President George W. Bush said, “I believe in private property so much, I want everyone in America to have some.” Much earlier, in 1948, an economics professor from the University of Texas expressed the same sentiment in strikingly similar terms. When asked by an investigatory committee of the Texas legislature whether he favored private property, he replied, “I do . . . and so strongly that I want everyone in Texas to have some.” Even putting aside the possibility that the President’s speechwriters found inspiration in an unacknowledged source, there are several interesting things to note about these two statements ...


Work-Related Stress: Survey Of Academic Staff In The Institutes Of Technology Sector, Aidan Kenny Jun 2015

Work-Related Stress: Survey Of Academic Staff In The Institutes Of Technology Sector, Aidan Kenny

Articles

This article presents findings from a survey of professional workers in the institutes of technology sector in Ireland regarding work-related stress. The research instrument was based on a work-related stress questionnaire developed by the UK Health and Safety Executive, augmented with a specific subset of questions relevant to the Irish higher education sector. The questionnaire format was modified to enable online delivery. It was distributed to a sample population in 2014 with a response rate over 30% (n=1,131). The research provides baseline data on work-related stress levels experienced by workers in this sector. The results associate increased levels ...


Dirks And The Genesis Of Personal Benefit, Adam C. Pritchard Jun 2015

Dirks And The Genesis Of Personal Benefit, Adam C. Pritchard

Articles

In United States v. Newman, the Second Circuit overturned the insider trading convictions of two hedge fund managers who received material nonpublic information from public companies via an extended tipping chain. The Newman court interpreted the Supreme Court's decision in Dirks v. SEC as requiring that the government prove: (1) that the tippee knew that the tipper was disclosing the information in exchange for a personal benefit; and (2) that if the personal benefit does not involve a quid pro quo to the tipper, that the disclosure arise from a "meaningfully close personal relationship" with the recipient of the ...


How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner May 2015

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement ...


All I Really Need To Know About Antitrust I Learned In 1912, Daniel A. Crane May 2015

All I Really Need To Know About Antitrust I Learned In 1912, Daniel A. Crane

Articles

Herbert Hovenkamp has indisputably earned the deanship of contemporary antitrust scholarship. One could point to many different attributes by which he has earned his laurels: fantastic scholarly productivity; clarity and precision in the craft of writing; analytical depth in both law and economics; moderation in a field apt to polarization; and custodianship of the influential Areeda treatise. In this Essay, I hope to honor another quality that has contributed significantly to Herb’s tremendous success as an antitrust scholar—his engagement with history. Much contemporary antitrust scholarship bursts with excitement at the discovery of new phenomena or theories that in ...


Against Solitary Confinement: Jonah's Redemption And Our Need For Mercy, Margo Schlanger May 2015

Against Solitary Confinement: Jonah's Redemption And Our Need For Mercy, Margo Schlanger

Articles

Author’s Note: This essay is adapted from one I wrote in September 2013 to give as a d’var Torah for Yom Kippur, and published in Tablet, an online Jewish magazine. Mostly, I’ve added footnotes. As a law professor, I am far more expert at constitutional than biblical exegesis. But perhaps because the Bible and the Constitution share their status as instrumental and highly authoritative documents, my own subjective experience of developing a reading or critique of both has turned out to be remarkably similar. Both exercises require close textual reading and wide-ranging investigation of its extant interpretations ...


Traveling To Chile To Learn About Idaho's Water Resource Issues, Jerrold A. Long May 2015

Traveling To Chile To Learn About Idaho's Water Resource Issues, Jerrold A. Long

Articles

No abstract provided.


No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones Apr 2015

No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones

Articles

If the Supreme Court rules against the government in King v. Burwell, insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges. The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage. Because sicker people will retain coverage at a much higher rate than healthier people, insurance premiums in the individual market will surge by as much as fifty percent. Policymakers will come under intense pressure to mitigate the fallout from a government loss ...


Jewish Games For Learning: Renewing Heritage Traditions In The Digital Age, Owen Gottlieb Apr 2015

Jewish Games For Learning: Renewing Heritage Traditions In The Digital Age, Owen Gottlieb

Articles

Rather than a discontinuity from traditional modes of learning, new explorations of digital and strategic games in Jewish learning are markedly continuous with ancient practices. An explication of the close connections between traditional modes of Jewish learning, interpretive practice, and gaming culture can help to explain how Jews of the Digital Age can adopt and are adapting modern Games for Learning practices for contemporary purposes. The chapter opens by contextualizing a notion of Jewish Games and the field of Games for Learning. Next, the chapter explains the connections between game systems and Jewish traditions. It closes with a case study ...


Process Costs And Police Discretion, J. J. Prescott, Charlie Gerstein Apr 2015

Process Costs And Police Discretion, J. J. Prescott, Charlie Gerstein

Articles

Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these process costs ...


Silent Similarity, Jessica D. Litman Apr 2015

Silent Similarity, Jessica D. Litman

Articles

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the ...


Reflections On Comity In The Law Of American Federalism, Gil Seinfeld Apr 2015

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on ...