Law Commons^™

Bringing Baseball To Israel, Kenneth Lasson

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This brief article discusses little leagues in Israel, as well as individuals interested in baseball in that nation, especially those from the Maryland and Baltimore area. Mentioned is assistance sent to the little leagues by the Baltimore Orioles baseball team, and some of the memories of those involved of baseball in the United States, but who now reside in Israel.

Doctors, Discipline, And The Death Penalty: Professional Implications Of Safe Harbor Statutes, Nadia N. Sawicki

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State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. Foremost among these are safe harbor policies, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who participate in executions. This Article posits that safe harbor policies, as limitations on medical board …

Political Versus Administrative Justice, Stephanos Bibas

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This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment. The essay by Rachel Barkow to which this comment responds, as well as other authors' comments on this essay and the author's reply to those comments, can be found at http://www.law.upenn.edu/phr/conversations/status/

World War 4.0: The Intel Antitrust Wars, Robert H. Lande

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This short piece gives an overview of antitrust actions filed around the world against Intel for allegedly undertaking anticompetitive actions in the market for X 86 PC chips.

Lessons Learned From The 2004 Presidential Election: Testimony Of Gilda R. Daniels Before The House Judiciary Subcommittee On The Constitution, Civil Rights And Civil Liberties, July 24, 2008, Gilda R. Daniels

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Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, "voting irregularities" and "election protection" and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.

What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. …

Citizen Mccain, Michael I. Meyerson

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No abstract provided.

The Immigration Paradox: Alien Workers And Distributive Justice, Howard F. Chang

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The immigration of relatively unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal ideals. These ideals would treat these workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of relatively unskilled workers …

Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp

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Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed …

Jackpot Justice And The American Tort System: Thinking Beyond Junk Science, Tom Baker, Herbert M. Kritzer, Neil Vidmar

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In 2007 the Pacific Research Institute released a report, Jackpot Justice: The True Cost of America's Tort System, that is widely available on the internet. The conclusion of the report is that America's tort system costs $865.37 billion annually, amounting to an "annual price tag, or 'tort tax' for a family of four in terms of costs and foregone benefits" of $9,827. As our report will demonstrate, the conclusions of Jackpot Justice are without scientific merit and present a very misleading picture of the American tort system and its costs.

Research on the tort system's efficiency, its fairness and …

Water Security, Fear Mitigation And International Water Law (Symposium), A. Dan Tarlock

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Water lawyers, courts, and others in the water community are fond of quoting the quip attributed to Mark Twain, "whiskey is for drinking and water is for fighting over." Not only is there no evidence that Twain ever uttered these words, but the quote has taken on a life of its own which grossly distorts the nature of water competition disputes, especially state to state competition. Both whiskey and water are for human benefit and exist in sufficient quantities throughout the world to satisfy present and future demand. Meeting these demands will be challenging because water must be managed to …

Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee

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No abstract provided.

Transnational Legal Practice 2006-2007, Laurel S. Terry, Carol Silver, Ellyn Rosen, Carol A. Needham, Robert E. Lutz, Peter D. Ehrenhaft

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Law practice continues to expand across borders, and lawyers and law firms from the United States and other countries are substantially invested in representations that take them outside of their home jurisdictions.[1] Unfortunately, reliable information relating to the extent of internationalization of the legal market is scarce. Neither the number of lawyers and law firms working in the international legal services market nor the receipts generated from internationally-related work are readily and reliably available. Nevertheless, statistics from both the United States and United Kingdom provide a sense of the numbers from the largest present sources of international legal practice.

In …

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki

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Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that …

Rethinking Broadband Internet Access, Daniel F. Spulber, Christopher S. Yoo

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The emergence of broadband Internet technologies, such as cable modem and digital subscriber line (DSL) systems, has reopened debates over how the Internet should be regulated. Advocates of network neutrality and open access to cable modem systems have proposed extending the regulatory regime developed to govern conventional telephone and narrowband Internet service to broadband. A critical analysis of the rationales traditionally invoked to justify the regulation of telecommunications networks--such as natural monopoly, network economic effects, vertical exclusion, and the dangers of ruinous competition--reveals that those rationales depend on empirical and theoretical preconditions that do not apply to broadband. In addition, …

Mamaloshen At Hopkins: The Education Of Marc Caplan, Kenneth Lasson

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This short article recounts the life story of Johns Hopkins Professor Marc Caplan, the first professor of Yiddish at that institution. He was born in Alexandria, La, and thus had his origins in the Deep South, in that town of about 100 Jewish families. He eventually went to Yale, and New York University, finally finding his present job at Hopkins, in Baltimore, MD.

The Unbearable Lightness Of Christian Legal Scholarship, David A. Skeel Jr.

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When the ascendancy of a new movement leaves a visible a mark on American politics and law, its footprints ordinarily can be traced through the pages of America’s law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the law review literature in the 1976, the year Newsweek proclaimed as the "year of the evangelical," one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship had …

Invasions Of Conscience And Faked Apologies, Stephanos Bibas

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This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive. The essay by Jeffrie Murphy to which this comment responds, as well as other authors' comments on …

The Antitrust Standard For Unlawful Exclusionary Conduct, Herbert J. Hovenkamp

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This essay considers the general definition of unlawful exclusionary practices under Section 2 of the Sherman Act as acts that: (1) are reasonably capable of creating, enlarging or prolonging monopoly power by impairing the opportunities of rivals; and (2) that either (2a) do not benefit consumers at all, or (2b) are unnecessary for the particular consumer benefits claimed for them, or (2c) produce harms disproportionate to any resulting benefits. An important purpose of this progression of queries is to permit the court to avoid balancing, although balancing certainly cannot be avoided in some close cases. The given definition is very …

Bionormativity And The Construction Of Parenthood, Katharine K. Baker

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This piece explores the relationship between legal and biological parenthood. It examines how neither history, nor evolutionary biology nor moral philosophy dictate a legal regime in which parenthood must be based on biological connection, but that attraction to a biological (or “bionormative”) regime remains strong. In explaining why, it suggests that much of what attracts people to bionormativity is not biology itself, but the way in which a biological regime constructs parenthood as a private, exclusive and binary enterprise. It is these ancillary qualities of bionormativity that people may care the most about. Today, a variety of forces put pressure …

Residential Protectionism And The Legal Mythology Of Home, Stephanie M. Stern

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Residential real estate has achieved an exalted status and privileged position in American property law. The notion of the home as a special object deserving heightened protection is widely accepted within the case law and scholarship. Influential scholars, most notably Margaret Radin, have argued that the home is critical for an individual's very identity and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Over the past century, there has been a proliferation of legislation creating special protections for owners of residential real estate such …

The Class Action Fairness Act Of 2005 In Historical Context: A Preliminary View, Stephen B. Burbank

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As courts confront, and commentators begin to write about, the many jurisdictional questions that emerged from CAFA’s long and messy legislative process, I propose instead to set that legislation in context. The contexts that, given my training and interests, I find most revealing concern the history of federal diversity of citizenship litigation in general and, within that larger story, the history of diversity class actions in federal court. Because all questions of federal court subject matter jurisdiction implicate the "happy relations of States to Nation," both accounts necessarily pay attention to state court litigation and to the impact of doctrinal …

Happiness Research And Cost-Benefit Analysis, Matthew D. Adler, Eric Posner

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A growing body of research on happiness or subjective well-being shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their well-being, and, similarly, enjoy small or moderate rather than significant changes in well-being in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out to …

Patent Deception In Standard Setting: The Case For Antitrust Policy, Herbert J. Hovenkamp

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Many patent applications are rejected upon initial submission, but they are almost never rejected with absolute finality. Further, subsequent to filing its original application a patent applicant might wish to write an application with broader or somewhat different claims, or perhaps add claims that were not made in the original application. Or it may wish to rewrite claims that had been rejected in the original application. A patent "continuation" is an application for additional claims made on a patent that was previously applied for.

Under generally accepted patent practices in the United States, when a subsequent continuation or divisional application …

The Discriminating Mind: Define It, Prove It, Amy L. Wax

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Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect welldocumented “supply side” disparities between groups in human capital development, qualifications, and behavior. These patterns are not most …

Coding Complexity: Bringing Law To The Empirical Analysis Of The Supreme Court, Carolyn Shapiro

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In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts.

Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist …

Corporate Taxation And International Charter Competition, Mitchell Kane, Edward B. Rock

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Corporate Charter competition has become an increasingly international phenomenon. The thesis of this article is that this development in the corporate law requires a greater focus on the corporate tax law. We first demonstrate how a tax system’s capacity to distort the international charter market depends both upon its approach to determining corporate location and the extent to which it taxes foreign source corporate profits. We also show, however, that it is not possible to remove all distortions through modifications to the tax system alone. We present instead two alternative methods for preserving an international charter market. The first best …

Agency Costs, Charitable Trusts, And Corporate Control: Evidence From Hershey's Kiss-Off, Jonathan Klick, Robert H. Sitkoff

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In July 2002 the trustees of the Milton Hershey School Trust announced a plan to diversify the Trust’s investment portfolio by selling the Trust’s controlling interest in the Hershey Company. The Company’s stock jumped from $62.50 to $78.30 on news of the proposed sale. But the Pennsylvania Attorney General, who was then running for governor, opposed the sale on the ground that it would harm the local community. Shortly after the Attorney General obtained a preliminary injunction, the trustees abandoned the sale and the Company’s stock dropped to $65.00. Using standard event study methodology, we find that the sale announcement …

Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."

This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how …

Popular Sovereignty And Legality, Christopher J. Peters

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This talk, prepared for delivery at the 2008 Wayne State University

Humanities Center Faculty Fellows Conference, explores the relationship between

popular sovereignty and legality. Legality – in particular, legal rights entrenched in a

constitution – often is thought to conflict with popular sovereignty in a way that

mirrors the supposed tension between individual autonomy and legal authority.

Both perceived conflicts, however, rest in part upon the problematic idea that the

law knows better than legal subjects what to do in particular cases. In fact, legal

authority is best justified as a means of resolving disputes about what to do in …

Free Speech And Human Dignity, Steven J. Heyman

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No abstract provided.