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Full-Text Articles in Law

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.


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 ...


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.


The Virtue Of Judicial Statesmanship, Neil S. Siegel Jan 2008

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America’s most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if underappreciated, dimension of judicial role. I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself—over the long run and with respect to ...


Fairness Through Guidance: Jury Instruction On Punitive Damages After Phillip Morris V. Williams, Neil Vidmar, Matthew W. Wolfe Jan 2008

Fairness Through Guidance: Jury Instruction On Punitive Damages After Phillip Morris V. Williams, Neil Vidmar, Matthew W. Wolfe

Faculty Scholarship

Abstract not available


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.


State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller Jan 2008

State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller

Faculty Scholarship

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a testament ...


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.


Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris Jan 2008

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.


Executive Preemption, Ernest A. Young Jan 2008

Executive Preemption, Ernest A. Young

Faculty Scholarship

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state has ...


Maximum Carbon Intensity Limitations And The Agreement On Technical Barriers To Trade, Charles O. Verrill Jr. Jan 2008

Maximum Carbon Intensity Limitations And The Agreement On Technical Barriers To Trade, Charles O. Verrill Jr.

Faculty Scholarship

Emission of greenhouse gases is a global problem. Any nation seeking to restrict such emissions by its manufacturers should avoid putting them at a disadvantage in world and domestic markets where they are likely to compete with producers that do not bear the cost of emission controls. One approach being considered in the United States would be adoption of technical regulations limiting the carbon intensity of basic products, such as cement, aluminum, steel, etc., offered for sale in the US market (carbon intensity would be defined as the C02 equivalent emissions per ton of product). Domestic and imported products that ...


Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman Jan 2008

Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman

Faculty Scholarship

Recent discussions in health reform circles have pinned great hopes on the prospect of innovation as the solution to the high-cost, inadequate-quality U.S. health system. But U.S. health care institutions--insurers, providers and specialists--have ceded leadership in innovation to Indian hospitals such as Care Hospital in Hyderabad and the Fortis Hospitals around New Delhi, which have U.S.-trained doctors and can perform open heart surgery for $6000 (compared to $100,000 in the United States). The Indian success is a window into America's stalemate with inflating costs and stagnant innovation.


The Verdict On Juries, Neil Vidmar, Valerie P. Hans Jan 2008

The Verdict On Juries, Neil Vidmar, Valerie P. Hans

Faculty Scholarship

No abstract provided.


The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer Jan 2008

The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer

Faculty Scholarship

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The ...


Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington Jan 2008

Freedom To Err: The Idea Of Natural Selection In Politics, Schools, And Courts, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Second-Generation Dispute System Design Issues In Managing Settlements, Francis Mcgovern Jan 2008

Second-Generation Dispute System Design Issues In Managing Settlements, Francis Mcgovern

Faculty Scholarship

No abstract provided.


Book Review, Ralf Michaels Jan 2008

Book Review, Ralf Michaels

Faculty Scholarship

reviewing, Denationalisierung des Privatrechts? Symposium anlässlich des 70. Geburtstages von Karl Kreuzer" (Eva-Maria Kieninger ed., Mohr Siebeck 2005))


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 ...


Public And Private International Law : German Views On Global Issues, Ralf Michaels Jan 2008

Public And Private International Law : German Views On Global Issues, Ralf Michaels

Faculty Scholarship

No abstract provided.


Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller Jan 2008

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Scholarship

Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v ...


Fixing Innovation Policy: A Structural Perspective, Stuart M. Benjamin, Arti K. Rai Jan 2008

Fixing Innovation Policy: A Structural Perspective, Stuart M. Benjamin, Arti K. Rai

Faculty Scholarship

Innovation is central to economic growth and human welfare. Government officials and commentators have recognized this reality and have called for a variety of different substantive incentives for stimulating innovation. But the question of how an innovation regulator should be structured has received little attention. Such consideration is important not only because of the significance of innovation but also because current government innovation policy is so haphazard. There is no government entity that looks at innovation broadly, and the narrower agencies that regulate aspects of innovation policy not only fail to pay systematic attention to innovation goals but often act ...


The Upside Of Overbreadth, Samuel W. Buell Jan 2008

The Upside Of Overbreadth, Samuel W. Buell

Faculty Scholarship

Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors ...


Time For A Twenty-First Century Justice Department, Samuel W. Buell Jan 2008

Time For A Twenty-First Century Justice Department, Samuel W. Buell

Faculty Scholarship

This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools ...


Do State Anti-Cruelty Laws Apply To Animals Used In Scientific Research?, William A. Reppy Jr. Jan 2008

Do State Anti-Cruelty Laws Apply To Animals Used In Scientific Research?, William A. Reppy Jr.

Faculty Scholarship

Animals & Bioengineering - A Consideration of Law, Ethics and Science Conference (November 9, 2007)