Law Commons^™

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Faculty Publications

No abstract provided.

Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Promises Policies And Principles The Supreme Court And Contractual Obligation In Labor Relations, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The United States' Use Of Drones In The War On Terror: The (Il)Legality Of Targeted Killings Under International Law, Milena Sterio

Law Faculty Articles and Essays

After the terrorist attacks of September 11, 2001, the United States government began to use drones against al-Qaeda targets. According to several media reports, the United States developed two parallel drone programs: one operated by the military, and one operated in secrecy by the CIA. Under the Obama Administration, the latter program developed and- the number of drone attacks in countries such as Pakistan and Yemen has steadily increased. Because the drone program is operated covertly by the CIA, it has been impossible to determine the precise contours of the program, its legal and normative framework, and whether its operators …

Four Easy Pieces To Balance Privacy And Accountability In Public Higher Education: A Response To Wrongdoing Ranging From Petty Corruption To The Sandusky And Penn State Tragedy, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.

Educating New Lawyers, Tara L. Casey

Law Faculty Publications

In this article, the author discusses how law schools have been challenged recently to place greater emphasis on preparing students for the realities of legal practice through skills training and community-based learning.

Executive Compensation: In Culture Of Greed And Selfishness, Is There Room For Theory Of "Enough", Robert C. Downs

Faculty Works

No abstract provided.

The Private Costs Of Patent Litigation, James Bessen, Michael J. Meurer

Faculty Scholarship

This paper estimates the total cost of patent litigation to alleged infringers. We use a large sample of stock market event studies around the date of lawsuit filings for US public firms from 1984-99. We find that the total costs of litigation are much greater than legal fees and costs are large even for lawsuits that settle. Lawsuits cost alleged infringers about $28.7 million ($92) in the mean and $2.9 million in the median. Moreover, infringement risk rose sharply during the late 1990s to over 14% of R&D spending. Small firms have lower risk relative to R&D.

Disclosure To The Rescue: A Conceptual Framework For Retained Asset Accounts, Maria O'Brien

Faculty Scholarship

RAAs (Retained Asset Accounts) are a life insurance innovation that is likely of small value to most beneficiaries. In many cases, it will make the most financial sense for a beneficiary to write a check to himself for the entire policy proceeds and deposit those funds into an insured bank account. Some beneficiaries, however, may find the RAA device helpful. It is impossible to anticipate the myriad circumstances that beneficiaries may face at the time of an insured's death. As long as insurers provide full and clear disclosure (which ERISA fiduciary standards demand), consumers should remain free to choose an …

Vol. 43, No. 06 (October 1, 2012)

Indiana Law Annotated

No abstract provided.

Law School Learning Communities: A Community Of Learners For The Benefit Of All Learners, Oscar J. Salinas

Faculty Publications

No abstract provided.

A Necessary Effort: The Construction Of A Binational Immigration Policy For Nicaraguan Immigrants In Costa Rica, Irma Castañeda

Independent Study Project (ISP) Collection

Although the experiences of Nicaraguan immigrants to Costa Rica have been well-studied, the investigation of this topic through the lens of the construction of public policies is missing. Through the testimonies of Nicaraguans that emigrated or still live and work in Costa Rica, I learned that immigrants, especially those that are undocumented, are vulnerable to the violation of their rights, for example, through the lack of access to public services or mistreatment by their bosses. Because of these violations, it is necessary to examine the topic of the immigration policies of both countries because they influence the treatment and integration …

Drug Sentencing Policy Discourse Of Fortaleza, Nick Sundback

Independent Study Project (ISP) Collection

Drug sentencing is a pressing issue in Brazil. With the context of high and increasing rates of crime and drug use, overcrowded prisons, and high rates of recidivism both in terms of prison and drug addiction, attitudes of individuals towards drug sentencing policy are worthy of observation and examination.

The objective of this monograph is to examine discourse by informants, five individuals who interact with sections of society most affected by drug sentencing, namely drug users. This monograph will consider pluralistic observations on, and evaluations of, drug sentencing practices, implementation of drug sentencing, an overview of the broader debate over …

Managing Expectations: Does The Directors' Duty To Monitor Promise More Than It Can Deliver?, Lisa Fairfax

All Faculty Scholarship

This article grapples with whether we are expecting too much from the duty of oversight. The directors’ oversight duty refers to directors’ responsibility to actively monitor corporate officers, employees, and corporate affairs. Directors breach their oversight duty when officers and employees engage in wrongdoing that causes harm to the corporation and that wrongdoing can be attributed to directors’ failure to monitor. In other words, oversight liability holds directors liable for their failure to act under circumstances where it can be proven that directors should have acted and their actions could have prevented corporate harm.

The significance of directors’ oversight duty …

Mission: Impossible, Mission: Accomplished Or Mission: Underway? A Survey And Analysis Of Current Trends In Professionalism Education In American Law Schools, Mary Ann Robinson

Working Paper Series

This Article identifies common characteristics of effective professionalism instruction to provide guidance in how to design innovative professionalism instruction. After introducing the topic in Part I, Part II of this Article describes the origins and development of the professionalism education movement in American Law schools. Part III of this Article explains our methods for collecting information and identifies and summarizes the predominant trends, and provides examples of noteworthy programs or initiatives. Part IV concludes by describing our method for assessing successful programs and identifying the characteristics of effective professionalism instruction.

Summary Of State Of Nevada V. Reliant Energy, Inc., 128 Nev. Adv. Op. No. 46, Brittnie Watkins

Nevada Supreme Court Summaries

The Court considered an appeal from a district court’s order dismissing Appellants’ complaint, which alleged violation of Nevada antitrust laws.

Bad Faith At Middle Age: Comments On The Principle Without A Name (Yet), Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, …

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Spacs And The Jobs Act, Usha Rodrigues

Scholarly Works

The law has long confined the average investor to trading in public securitieswhile allowing wealthy—or “accredited”—individual investors access to a panoply of private securities, including investment vehicles such as hedge funds and private equity funds. Nevertheless, pressure to let the general public into private equity has been growing. Two forces have contributed to this mounting pressure. First, public investors are eager to try their hand at investing in private enterprise. Second, private firms need capital. In the face of these forces, the sharp line that has long separated public and private firms has become increasingly blurred

Consider the story of …

Punishment Without Conviction: Controlling The Use Of Unconvicted Conduct In Federal Sentencing, Gerald F. Leonard, Christine Dieter

Faculty Scholarship

Federal sentencing law is widely applied to punish offenders not only for the offenses of which they have been convicted, but also, in the same proceeding, for offenses of which they have not been convicted. Unlike many scholars, we accept that federal courts can, in the right circumstances, legitimately enhance sentences for facts and conduct found at sentencing, even when those facts and conduct constitute uncharged offenses or even charges on which the defendant actually won an acquittal. But we argue that in identifiable cases, the use of such sentencing facts does cross the line from appropriate contextualization of the …

The Delaware Death Penalty: An Empirical Study, Sheri Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells

Cornell Law Faculty Publications

For the last five years, we have conducted an empirical study of the “modern era” of capital punishment in Delaware. By “modern era,” we refer to the time period after the Supreme Court’s 1972 decision in Furman v.Georgia, which invalidated all then-existing state death penalty regimes. Some readers might ask, “Why Delaware?” They might observe that it is a small state and is not a significant national player in terms of death sentences imposed or death row inmates executed. While both are true, several features of Delaware’s capital punishment system intrigue us. First, Delaware has a high death sentencing rate. …

There's No Place Like Home: Realizing The Vision Of Community-Based Mental Health Treatment For Children, Yael Cannon

Faculty Scholarship

On the heels of the recession, the recent U.S. Census data reveals that the percentage of children living in poverty in the United States has grown to almost a quarter. Because children from low-income families are more likely to be exposed to high levels of stress, violence, abuse, overcrowding and other risk factors, they are far more likely to develop a mental health disorder--and to have their mental health needs go unmet. Rather than receive the necessary educational and mental health services, these children are often suspended and expelled, funneled through the school-to-prison pipeline' into the juvenile and criminal justice …

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Publications

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins

Faculty Publications

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority …

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

Cornell Law Faculty Publications

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds.

This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor …

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Faculty Publications

No abstract provided.

Reducing The Discount Rate, Ben L. Trachtenberg

Faculty Publications

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that …

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …