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Full-Text Articles in Law

The New European Choice-Of-Law Revolution, Ralf Michaels Dec 2008

The New European Choice-Of-Law Revolution, Ralf Michaels

Faculty Scholarship

Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along ...


Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen Dec 2008

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen

Faculty Scholarship

Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.


Systemic Risk, Steven L. Schwarcz Oct 2008

Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can ...


Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner Oct 2008

Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner

Faculty Scholarship

James M. Donovan’s article: Skating on Thin Intermediation: Can Libraries Survive?, 27 Legal Reference Services Q. 95 (no. 2-3, 2008) argues that librarians place more emphasis than they might on providing service to library users at a time when information seekers are relying less on intermediaries, and that over-emphasizing service to the detriment of other values diminishes the status of librarianship as a profession. The article presents two contrasting models of librarianship. This article discusses Donovan’s models and comments on the continuing importance of the service model to librarianship.


Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley Aug 2008

Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley

Faculty Scholarship

Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the “object and purpose” of the treaty until such time as it makes clear its intent not to become a ...


Questions About Tax Increment Financing In North Carolina, Joseph Blocher, Jonathan Q. Morgan Aug 2008

Questions About Tax Increment Financing In North Carolina, Joseph Blocher, Jonathan Q. Morgan

Faculty Scholarship

No abstract provided.


Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller Mar 2008

Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a ...


Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman Jan 2008

Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman

Faculty Scholarship

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles ...


Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman Jan 2008

Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman

Faculty Scholarship

Seeking to redress health disparities across income and race, many policy-makers mandate health insurance benefits, presuming that equalized benefits will help equalize use of beneficial health services. This paper tests that presumption by measuring health care use by a diverse population with comprehensive health insurance. Focusing on use of mental health care and pharmaceuticals, it finds that even when insurance benefits and access are constant, whites and those with high incomes consume more of these benefits than other people do. This suggests that privileged classes extract more health care services even when everyone pays equal premiums for equal insurance coverage.


Book Review, Jennifer L. Behrens Jan 2008

Book Review, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


Curricula And Complacency: A Response To Professor Levinson, Ernest A. Young Jan 2008

Curricula And Complacency: A Response To Professor Levinson, Ernest A. Young

Faculty Scholarship

No abstract provided.


Irrevocable Proxies, Deborah A. Demott Jan 2008

Irrevocable Proxies, Deborah A. Demott

Faculty Scholarship

This short article explores the circumstances under which the power to vote shares owned by another may be made irrevocable. Irrevocable proxies often serve as integral ingredients within corporate governance arrangements because they serve as mechanisms that enable alliances among shareowners or enhance the holder’s voting power in disproportion to the holder’s residual economic interest in the corporation. The rights and duties of holders of irrevocable proxies are best understood against a background of common-law agency relationships, in which agent and principal always have the power–albeit having contracted otherwise–to terminate their relationship and the agent’s ...


Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah Purdy, James Salzman Jan 2008

Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah Purdy, James Salzman

Faculty Scholarship

The Mexicans have long been known as the Corn People, but that label perhaps provides a better fit for modern day Americans. The simple seeds of corn play a fundamental role unprecedented in the history of human agriculture. Corn now underpins two major sectors, arguably the two most important sectors, of our modern economy - food supply and energy supply. How we choose to consume this seed has far-ranging consequences for pressing issues as far apart as climate change and diabetes, energy policy and immigration, tropical deforestation and food riots.


For Whom The Tel Tolls: Can State Tax And Expenditure Limits Effectively Reduce Spending?, Thad Kousser, Mathew D. Mccubbins, Ellen Moule Jan 2008

For Whom The Tel Tolls: Can State Tax And Expenditure Limits Effectively Reduce Spending?, Thad Kousser, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

Can voters stop state governments from spending at high rates through the enactment of tax and expenditure limits (TELs), or do these laws become dead letters? We draw upon the principal-agent literature to theorize that TELs – one of the most frequent uses of the initiative process across the country – may be circumvented by the sorts of elected officials who would inspire their passage.

In order to investigate our claim, we conduct an event study. First, we test for the effectiveness of TELs across states using a differences-in-differences model. Second, we dissect our treatment variable using different legal provisions of the ...


Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins Jan 2008

Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins

Faculty Scholarship

We find strong evidence that governing coalitions in Italy exercise significant negative agenda powers. First, governing parties have a roll rate that is nearly zero, and their roll rate is lower than opposition parties’ roll rates, which average about 20% on all final passage votes. Second, we find that, controlling for distance from the floor median, opposition parties have higher roll rates than government parties. These results strongly suggest that governing parties in Italy are able to control the legislative agenda to their benefit. We also document significantly higher opposition roll rates on decree-conversion bills and budget bills that on ...


After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk Jan 2008

After Inclusion, Mitu Gulati, Devon W. Carbado, Catherine Fisk

Faculty Scholarship

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity ...


Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So Jan 2008

Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So

Faculty Scholarship

Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur ...


Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener Jan 2008

Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener

Faculty Scholarship

This report provides an analysis of how intellectual property rights (IPRs), and alternatives to IPRs, might operate in green innovation. Part I of the paper discusses the economics of green innovation, including the important role that will need to be played by the private sector. Part II discusses the IPR issues, principally involving patents, that may arise if and when GHG externalities are addressed through the appropriate pricing of greenhouse gases. Part III addresses alternatives to traditional patents and exclusive licenses, including patent pools, liability rules, and prizes.


California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta Jan 2008

California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta

Faculty Scholarship

While the United States has of yet not passed meaningful legislation that addresses climate change, several U.S. states are taking steps to reduce the carbon footprints of their industries and citizens. As it has in the past, California is leading the way. But are its actions legal?


Cultural Values And Government, Walter E. Dellinger Iii Jan 2008

Cultural Values And Government, Walter E. Dellinger Iii

Faculty Scholarship

Mr. Dellinger Mr. Dellinger originally delivered these remarks for the panel entitled The Role of Government in Defining Our Culture, at the Federalist Society’s 2006 National Lawyers Convention, on Saturday, November 18, 2006, in Washington, D.C. commenting on the Ninth Circuit decision Finley v. National Endowment for the Arts. The case involved the constitutionality of the Helms Amendment which required that the National Endowment for the Arts take decency into account in choosing who should be awarded artistic grants.


Lawfare Today: A Perspective, Charles J. Dunlap Jr. Jan 2008

Lawfare Today: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne Jan 2008

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

Faculty Scholarship

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.


The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos Jan 2008

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only ...


Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre Jan 2008

Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre

Faculty Scholarship

No abstract provided.


Introducing A ‘Different Lives’ Approach To The Valuation Of Health And Well-Being, Matthew D. Adler, Paul Dolan Jan 2008

Introducing A ‘Different Lives’ Approach To The Valuation Of Health And Well-Being, Matthew D. Adler, Paul Dolan

Faculty Scholarship

We introduce a new "different lives" survey format, which asks respondents to rank hypothetical lives described in terms of longevity, health, happiness, income, and other elements of the quality of life. In this short paper, we show that the format is of policy relevance whether a mental state, preference satisfaction or extra-welfarist account of well-being is adopted and discuss some of the advantages the format has over standard formats, such as contingent valuation surveys and QALY-type methods. An exploratory survey indicates that the format is feasible and that health and happiness might be more important than income and life expectancy.


About Facebook - Change At The Social-Networking Juggernaut Creates New Opportunities For Law Library Outreach, Jennifer L. Behrens Jan 2008

About Facebook - Change At The Social-Networking Juggernaut Creates New Opportunities For Law Library Outreach, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez Jan 2008

Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


Judging Innocence, Brandon L. Garrett Jan 2008

Judging Innocence, Brandon L. Garrett

Faculty Scholarship

This empirical study examines for the first time how the criminal justice system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal ...


Corporate Confessions, Brandon L. Garrett Jan 2008

Corporate Confessions, Brandon L. Garrett

Faculty Scholarship

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second,before itself confessing, the firm may encourage employees to provide statements ...


The State Of Public Access To Federal Government Databases Detailed In Recommended New Book, Jennifer L. Behrens Jan 2008

The State Of Public Access To Federal Government Databases Detailed In Recommended New Book, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.