Law Commons^™

Beijing Court Orders Ministry Of Finance To Rule On Supplier's Complaints, But Skirts Broader Issue Of Schism In China's Procurement Supervision, Daniel J. Mitterhoff

Faculty Scholarship

No abstract provided.

Sublicensing From A Distressed Company: Are You Placing Your Future In The Debtor's Hands?, Michelle M. Harner, David A. Beck

Faculty Scholarship

No abstract provided.

Who Decides Whether A Patient Lives Or Dies?, Diane E. Hoffmann, Jack Schwartz

Faculty Scholarship

No abstract provided.

Oy Canada! Trade's Non-Solution To "The Problem" Of U.S. Drug Prices, Daniel Gilman

Faculty Scholarship

Price disparities—price “differentiation” or “discrimination”—in pharmaceuticals markets have, in recent years, been the subject of much discussion. Price sensitivity should come as no surprise: Medicines play an increasingly important role in healthcare, while pharmaceuticals prices continue to rise. When prices vary greatly within markets or between neighboring markets, the pressure towards arbitrage is clear. This paper considers the question whether the re-importation of medicines from Canada or the EU is well advised and argues that it is not. First, we might reasonably question the extent to which we wish, as a matter of policy, to manage pharmaceuticals pricing; among other …

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …

Catastrophic Risk And Governance After Hurricane Katrina: A Postscript To Terrorism Risk In A Post-9/11 Economy, Robert J. Rhee

Faculty Scholarship

This essay inquires into the political economy and system of governance that have made catastrophes more frequent and severe. The system of governance that is designed to mitigate risk and respond to catastrophes can be ineffective, or worse, increase the risk of harm through unintended consequences. Human influence must be considered a source of collateral risk, the kind that leads to a systemic crisis or exacerbates one. This essay concludes with some brief proposals, discussion topics more than completed ideas, which may facilitate further academic and political dialogue on effective governance and public risk management. They include a catastrophe tax, …

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

National Institutes Of Health State-Of-The-Science Conference Statement: Cesarean Delivery On Maternal Request, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Executive Aggrandizement In Foreign Affairs Lawmaking, Michael P. Van Alstine

Faculty Scholarship

This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.

The article first sets the legal and factual context …

The Legacy Of John Graham: Strait-Jacketing Risk Assessment, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Cause Lawyering And Social Movements: Can Solo And Small Firm Practitioners Anchor Social Movements?, Brenda Bratton Blom

Faculty Scholarship

As the demand for affordable legal services grows, law schools and the legal profession struggle to respond. By examining lessons from successful social movements in the last century, Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners anchor Social Movements looks at the Law School Consortium Project and its potential to participate in and anchor the social movements of our time. The collaboration of the law schools, networks of solo and small firm attorneys and activists at the local, regional and national level provide key elements for powerful change given the technological developments of the 21st century.

The Death Of Causation: Mass Products Torts' Incomplete Incorporation Of Social Welfare Principles, Donald G. Gifford

Faculty Scholarship

Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation. This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers’ compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, …

Teaching Legal Research And Writing With Actual Legal Work: Extending Clinical Education Into The First Year, Michael A. Millemann, Steven D. Schwinn

Faculty Scholarship

In this article, the co-authors argue that legal research and writing (LRW) teachers should use actual legal work to generate assignments. They recommend that clinical and LRW teachers work together to design, co-teach, and evaluate such courses. They describe two experimental courses they developed together and co-taught to support and clarify their arguments. They contend that actual legal work motivates students to learn the basic skills of research, analysis and writing, and thus helps to accomplish the primary goals of LRW courses. It also helps students to explore new dimensions of basic skills, including those related to the development and …

The Scarlet Gene: Behavioral Genetics, Criminal Law, And Racial And Ethnic Stigma, Karen H. Rothenberg, Alice Wang

Faculty Scholarship

Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your …

Grappling With The Regulatory Environment For Chinese Public Procurement, Daniel J. Mitterhoff

Faculty Scholarship

No abstract provided.

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

Faculty Scholarship

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …

Taxpayer Standing And Daimlerchrysler V. Cuno: Where Do We Go From Here?, Kristin E. Hickman, Donald B. Tobin

Faculty Scholarship

In granting certiorari in the case of Daimler-Chrysler Corp. v. Cuno, the Supreme Court asked the parties to brief "whether respondents have standing to challenge Ohio's investment tax credit." This report applies modern standing doctrine to the Cuno case and concludes that the Cuno plaintiffs do no have standing to raise their claims in federal court. Moreover, the authors write, allowing the Cuno plaintiffs' case to be resolved in federal court would open the federal court system to a wide range of taxpayer challenges better left to the political branches of government. Nevertheless, they recognize that there may be …

Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs

Faculty Scholarship

The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarfs disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence …

Autonomy Suspended: Using Female Patients To Teach Intimate Exams Without Their Consent, Robin Fretwell Wilson

Faculty Scholarship

Recent reports of medical students performing pelvic exams for training purposes on anesthetized women without their consent have produced a firestorm of controversy. Peter Ubel and colleagues found that 90% of medical students performed such exams during their obstetrics/gynecology rotations. A series of 2003 reports focused a white-hot spotlight on this teaching practice and resulted in Federal Trade Commission and Department of Justice hearings and action by the American Association of Medical Colleges and the American College of Obstetrics and Gynecology. In this article, Professor Wilson examines the merits of the defenses and justifications for using female patients for pelvic …

Some Reflections On The Diversity Of Corporate Boards: Women, People Of Color, And The Unique Issues Associated With Women Of Color, Lisa M. Fairfax

Faculty Scholarship

As one might expect, there are many similarities between the circumstances of women directors and directors of color, which includes African Americans, Latinos, and Asian Americans. Indeed, both groups began appearing on corporate boards in significant numbers during the same period—right after the Civil Rights Movement pursuant to which the push for racial equality throughout society precipitated efforts to achieve greater representation of people of color as well as women on corporate boards. Moreover, while women and people of color have experienced some increase in board representation over the last few decades, both groups also have encountered significant barriers to …

The Need For Closed Circuit Television In Mass Transit Systems, Michael Greenberger

Faculty Scholarship

Closed circuit television video (CCTV) surveillance systems need to be introduced or enhanced in the public areas within United States’ mass transit systems. London’s extensive system was used very successfully in the investigation of the July 2005 terrorist attacks on its subway and bus systems. That effective investigatory use of CCTV is very likely to be a significant deterrence to future terrorist activities on London mass transit. The United States must be prepared in the event of similar attacks on its soil. As roughly twenty times more people travel by mass transit than by air, it is time for this …

Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox

Faculty Scholarship

In the piece, Professor Brad Wilcox and I ask who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under new definitions of legal parentage proposed in this volume of the WILLIAM & MARY BILL OF RIGHTS JOURNAL. This question is also important today for evaluating state adoption laws. A significant number of states bar consideration of a prospective adopter’s marital or non-marital status. We believe these laws miss an important opportunity to maximize the best interests of each child being placed. In this piece, we take an exclusively child-centered approach, drawing …

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …

To Kill A Mockingbird (1962): Lawyering In An Unjust Society, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja Starr

Faculty Scholarship

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively – and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

An Excuse-Centered Approach To Transitional Justice, David C. Gray

Faculty Scholarship

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

Private Ordering Under The Ali Principles: As Natural As Status, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Between Rogues And Liberals: Towards Value Pluralism As A Theory Of Freedom Of Religion In International Law, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Rule-Skepticism, "Strategery," And The Limits Of International Law, David Gray

Faculty Scholarship

This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas. In the essay I …

To Protect And Defend: Assigning Parental Rights When Parents Are Living In Poverty, Karen Czapanskiy

Faculty Scholarship

No abstract provided.