Law Commons^™

Guideline Institutionalization: The Role Of Merger Guidelines In Antitrust Discourse, Hillary Greene

Faculty Articles and Papers

With the growth of the administrative state, agency-promulgated enforcement policy statements, typically referred to as guidelines, have become ubiquitous in the U.S. federal system. Yet, the actual usage and impact of such guidelines is poorly understood. Often the issuing agencies declare the guidelines to be nonbinding, even for themselves. Notwithstanding this disclaimer, the government, private parties, and even the courts frequently rely on the guidelines in a precedent-like manner. In this Article, Professor Greene examines the evolution of one system of enforcement policy guidelines - the U.S. federal antitrust merger guidelines - and finds that these guidelines have acted as …

Developing Citizens, Anne Dailey

Faculty Articles and Papers

The Supreme Court has known for over a half century that the survival of our constitutional polity ultimately depends on the proper cultivation of children's hearts and minds. This idea was expressed most directly in Brown v. Board of Education, where a unanimous Supreme Court concluded that segregated schooling affects the hearts and minds of African-American schoolchildren in a way that undermines the very foundation of good citizenship. On many other occasions as well, the Justices have formulated constitutional doctrine to foster democratic skills of mind in future citizens. Yet for all the normative force of this idea, courts and …

Can A State Tax The Fuel That Is Sold By Non-Indian Distributors To A Tribal Gas Station, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Building A Better Lawyer Discipline System: The Queensland Experience, Leslie Levin

Faculty Articles and Papers

In many jurisdictions, lawyer-run discipline systems are inefficient, overly lenient and insufficiently responsive to consumer's concerns. Queensland's Legal Profession Act 2004 (Qld) breaks away from that model by moving lawyer discipline out of lawyers' professional associations and into an independent agency. It articulates a decidedly consumer-oriented approach to lawyer discipline and gives Queensland's new Legal Services Commissioner the power to investigate and prosecute all discipline complaints. This article looks at Queensland's recent reforms, and considers how well the new system is meeting its twin goals of consumer protection and traditional lawyer discipline. Using interviews and other data, the article identifies …

Beyond Worship: The Religious Land Use And Institutionalized Persons Act Of 2000 And Religious Institutions' Auxiliary Uses, Sara Bronin

Faculty Articles and Papers

No abstract provided.

Painter V. Bannister: Still, Carol Weisbrod

Faculty Articles and Papers

No abstract provided.

Articulating Trade Offs: The Political Economy Of State Action Immunity, Hillary Greene

Faculty Articles and Papers

Antitrust uses economic analysis to assess various trade-offs involving efficiency. Even assuming that a competition matter implicates purely economic matters it can be exceedingly difficult to determine and measure all the relevant factors, assign them proper weights, decide on the appropriate time frames, assess the pertinent interactions, and conduct the trade-off calculations. Not surprisingly, different members of the antitrust community often take vastly differing positions regarding the economic consequences of a particular antitrust doctrine as well as the significance of those consequences. When potentially anti-competitive conduct occurs in the context of state regulation, the challenge to achieving a sensible accommodation …

Liberalism And Republicanism: In Federal Indian Law, Bethany Berger

Faculty Articles and Papers

This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John …

Is There A Steroids Problem - The Problematic Character Of The Case For Regulation, Lewis Kurlantzick

Faculty Articles and Papers

No abstract provided.

Faith, The State, And The Humility Of International Law, Mark Weston Janis

Faculty Articles and Papers

Father Robert Drinan, long a leading advocate of human rights, has had a distinguished career serving as a U.S. congressman from Massachusetts, as Dean of the Boston College Law School, and now as Professor of Law at Georgetown University Law Center. Father Drinan's new book, Can God and Caesar Coexist?: Balancing Religious Freedom and International Law, sensitively and persuasively sets out the often tortuous relations among religion (the God of his title), national governments (Caesar), and international law (the new and possibly helpful partner in this relationship). My essay employs the facts and arguments in Father Drinan's Can God and …

Causing Death For Compassionate Reasons In American Law, Richard Kay

Faculty Articles and Papers

This essay, a revised version of the United States report on Euthanasia to be presented at the XVII International Congress of Comparative Law, surveys the state of the law, both decisional and statutory, on the permissibility of compassionately motivated actions to terminate human life. It deals with a range of legal categories: suicide, attempted suicide, euthanasia, assisted suicide and the termination of life-sustaining treatment. It highlights the deeply ambivalent attitudes held toward these actions in contemporary America and how this ambivalence has resulted in obscure and artificial distinctions.

It's Not About The Fox: The Untold History Of Pierson V. Post, Bethany Berger

Faculty Articles and Papers

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The …

The Empirical Roots Of The 'Regulatory Reform' Movement: A Critical Appraisal, Richard Parker

Faculty Articles and Papers

Over the past few years the debate over the economic rationality of health, safety and environmental regulation has morphed into a sustained controversy over the tests and methods by which that rationality is judged. Critics have argued that the main regulatory scorecards which comprise much of the empirical foundation for the regulatory reform movement are fundamentally flawed because they: alter agency estimates of future costs and benefits; disregard most uncertainties; and misrepresent ex ante guesses as the costs and benefits of regulation. They also zero out whole categories of benefits that cannot be quantified and/or monetized even when the benefits …

On The Value Of Prison Visits With Incarcerated Clients Represented On Appeal By A Law School Criminal Defense Clinic, Timothy Everett

Faculty Articles and Papers

No abstract provided.

Rehabilitating Rehab Through State Building Codes, Sara Bronin

Faculty Articles and Papers

Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation-which can have many positive effects, especially on cities - should be encouraged, not deterred. One promising method of encouraging rehabilitation has been the adoption of "rehabilitation codes": building codes that establish flexible but clear requirements for renovators. After analyzing traditional building codes and three different rehabilitation codes, this Note concludes that more states should adopt mandatory rehabilitation codes.

The American Tradition Of International Law: Exceptionalism And Universalism, Mark Weston Janis

Faculty Articles and Papers

No abstract provided.

Policy Implications Of Weak Patent Rights, Hillary Greene, James J. Anton, Dennis A. Yao

Faculty Articles and Papers

Patents vary substantially in the degree of protection provided against unauthorized imitation. In this chapter we explore a range of work addressing the economic and policy implications of "weak" patents--patents that have a significant probability of being overturned or being circumvented relatively easily---on innovation and disclosure incentives, antitrust policy, and organizational incentives and entrepreneurial activity.

Weak patents cause firms to rely more heavily on secrecy. Thus, the competitive environment is characterized by private information about the extent of the innovator's know-how. In such an environment weak patents increase the likelihood of imitation and infringement, reduce the amount of knowledge publicly …