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2010

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Full-Text Articles in Law

The Hydra, Carl E. Schneider Jul 2010

The Hydra, Carl E. Schneider

Articles

Almost nobody favors long consent forms for prospective research subjects. Almost everybody thinks they interfere with informed consent's purpose-good decisions. Nevertheless, almost everybody believes consent forms have long been getting longer. Years ago, Paul Appelbaum lamented the "tendency to cram ever more information into consent forms." Weeks ago, Ilene Albala and her colleagues (one of them Appelbaum) reported in IRE: Ethics & Human Research that the length of one institutional review board's forms "increased roughly linearly by an average of 1.5 pages per decade. In the 1970s, the average consent form was less than one page long and ...


Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan Apr 2010

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

Articles

The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship ...


The Approach Of The Committee On The Elimination Of Racial Discrimination To Interpreting And Applying International Humanitarian Law, David Weissbrodt Jan 2010

The Approach Of The Committee On The Elimination Of Racial Discrimination To Interpreting And Applying International Humanitarian Law, David Weissbrodt

Articles

The four Geneva Conventions 1 and the two Additional Protocols of 1977 2 generally lack authoritative mechanisms for interpretation. Interpretation and application of these treaties are principally left to the judgment of the states that are parties to the Geneva Conventions and Protocols 3 and, increasingly, to the International Criminal Court and international tribunals. 4 The International Committee of the Red Cross (ICRC) encourages states parties to comply with their obligations under humanitarian law, but it is not an adjudicative body 5 and rarely publishes its authoritative interpretations of the Geneva Conventions and Protocols. 6 Article 90 of Additional Protocol ...


Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty Jan 2010

Framing Justice: Media, Bias, And Legal Decisionmaking, Perry L. Moriearty

Articles

During the 1990s, the news media saturated the American public with stories and images of glassy-eyed, teenaged “superpredators,” who allegedly killed and maimed for sport. These violent, dark and “morally impoverished” youth were running wild in our city streets was the message, and unless we did something, they would destroy the very moral fabric of our society. Drawing on recent social science studies, which demonstrate that the graphic and racialized content of crime news coverage can increase consumers’ cognitive bias in imperceptible, but determinative ways, I argue that exposure to the “superpredator” narrative may have had a discernable impact on ...


The Law And Economics Of Price Discrimination In Modern Economies: Time For Reconciliation?, Daniel J. Gifford, Robert T. Kudrle Jan 2010

The Law And Economics Of Price Discrimination In Modern Economies: Time For Reconciliation?, Daniel J. Gifford, Robert T. Kudrle

Articles

This paper examines the forms, goals, and results of price discrimination. It reviews various economic analyses and critiques of the three Pigovian types of price discrimination. It observes that economists' traditional concern with aggregate welfare has not, until recently, been accompanied by a similar concern by lawyers. Until the late twentieth century lawyers tended to focus on "fairness" instead. These different concerns have impeded mutual understanding, as have the various meanings that lawyers and economists have attributed to such basic terms as "monopoly power," "market power" and "competition" in the price discrimination context. The paper examines the principal laws of ...


Let's Try This Again: The Ada Amendments Act Of 2008 Attempts To Reinvigorate The "Regarded As" Prong Of The Statutory Definition Of Disability, Stephen F. Befort Jan 2010

Let's Try This Again: The Ada Amendments Act Of 2008 Attempts To Reinvigorate The "Regarded As" Prong Of The Statutory Definition Of Disability, Stephen F. Befort

Articles

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let ...


Berle's Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard W. Painter Jan 2010

Berle's Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard W. Painter

Articles

This paper, published in a symposium on the work of Adolf Berle, approaches the Berle-Dodd debate from the perspective that corporate managers have responsibilities beyond pursuing the interests of shareholders. Stock based executive compensation, designed to align managers’ interests with those of shareholders, has, in the investment banking industry in particular, failed to avert, and may have caused, managers to take excessive risks that in the 2008 financial crisis inflicted great damage on creditors and on society as a whole. We describe here the broad outlines of a proposal that we will discuss in future publications in more detail to ...


Custody Investigations In Divorce-Custody Litigation, Robert Levy Jan 2010

Custody Investigations In Divorce-Custody Litigation, Robert Levy

Articles

Divorce custody litigation has been a social success. Despite the continuing complaints of participants-judges, lawyers, social and behavioral experts, the parents-the vast majority of couples who want to terminate their marriages and allocate control and responsibility for their children have been able to accomplish their goals relatively efficiently. And, if the law and government actors have not been terribly successful or efficient in resolving parental custody disputes that the parents' lawyers have not been able to settle, it has not been for lack of trying. Custody litigation is difficult, emotional, and unrewarding, for all participants (even financially, lawyers claim, because ...


It Came From Beneath The Twilight Zone: Wiretapping And Article Ii Imperialism, Heidi Kitrosser Jan 2010

It Came From Beneath The Twilight Zone: Wiretapping And Article Ii Imperialism, Heidi Kitrosser

Articles

This Article was written for the 2010 Texas Law Review Symposium: National Security, Privacy, and Technological Change. Using the example of federal government wiretapping, the Article examines “exclusivist” invocations of evolving U.S. history. Exclusivity is the view that the President has a constitutional power to circumvent statutory restrictions that interfere with his judgment as to how best to protect national security. In addition to arguing from text, structure, and founding era history, exclusivists sometimes invoke post-founding, or evolving history to defend their position. In the case of the Bush Administration’s warrantless wiretapping program, for example, the administration and ...


Insurance Demand Anomalies And Regulation, Daniel Schwarcz Jan 2010

Insurance Demand Anomalies And Regulation, Daniel Schwarcz

Articles

No abstract provided.


Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz Jan 2010

Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz

Articles

In recent years, it has become increasingly clear that Expected Utility Theory (EUT) is a remarkably poor theory of how and why individuals purchase insurance. However, the normative implications of this conclusion have remained largely unexplored. This Article takes up this issue. It argues that many observed deviations from EUT are likely the result of mistakes, in the sense that consumers would act differently than they do if they possessed perfect information and cognitive resources. From this perspective, regulatory interventions designed to improve consumer decision-making about insurance are potentially desirable. At the same time, the Article argues that some deviations ...


Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz Jan 2010

Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz

Articles

In both corporate and banking law, firms are empowered to select from a limited menu of options the regulatory regimes that will govern them. Two recent proposals would reform the regulation of property, casualty and life insurance markets by empowering insurers to make similar choices among multiple regulators. This Article argues that such regulatory competition is undesirable. Insurers operating in such a regime would tend to choose the least intrusive regulators, irrespective of whether doing so benefited consumers, third-parties, or even the collective interests of insurers themselves. The resulting decrease in regulatory scrutiny would, in fact, harm insurance markets and ...


Examining The Real Demand For Legal Services, Herbert M. Kritzer Jan 2010

Examining The Real Demand For Legal Services, Herbert M. Kritzer

Articles

Legal needs studies repeatedly show that low and modest income Americans obtain legal assistance for only a small percentage of their legal needs. This is taken to demonstrate a failing of the American justice system. However, relying on several older studies and research conducted outside the United States, one finds that there is little relationship between income and obtaining legal assistance once one controls for type of legal problem (and amount at stake). This paper argues that in thinking about legal needs, one must have a realistic baseline and the simple count of legal problems does not provide that baseline ...


State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass Jan 2010

State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass

Articles

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions ...


National Security And The Article Ii Shell Game, Heidi Kitrosser Jan 2010

National Security And The Article Ii Shell Game, Heidi Kitrosser

Articles

This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is “presidential exclusivity,” which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution to override statutory limits that he believes interfere with his ability to protect national security. The first question that this essay takes up is why exclusivity has come so far over the past several ...


Concepts, Categories, And Compliance In The Regulatory State, Kristin Hickman, Claire Hill Jan 2010

Concepts, Categories, And Compliance In The Regulatory State, Kristin Hickman, Claire Hill

Articles

Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that they can only be explained or understood by reference to history. At its (perhaps caricatured) extreme, such a regime is one in which regulated parties expend significant efforts attempting to comply with the law and often succeed in complying at the most minimal level possible, to the point that compliance is perceived as optional and ...


Impersonal Jurisdiction, Allan Erbsen Jan 2010

Impersonal Jurisdiction, Allan Erbsen

Articles

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism - the constitutional relationship between states - should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence ...


Why Did Rating Agencies Do Such A Bad Job Rating Subprime Securities?, Claire Hill Jan 2010

Why Did Rating Agencies Do Such A Bad Job Rating Subprime Securities?, Claire Hill

Articles

Why did rating agencies do such a bad job rating subprime securities? The conventional answer draws heavily on the fact that ratings are paid for by the issuers: Issuers could, and do, “buy” high ratings from willing sellers, the rating agencies. The conventional answer cannot be wholly correct or even nearly so. Issuers also pay rating agencies to rate their corporate bond issues, yet very few corporate bond issues are rated AAA. If the rating agencies were selling high ratings, why weren’t high ratings sold for corporate bonds? Moreover, for some types of subprime securities, a particular rating agency ...


A Burkean Perspective On Patent Eligibility, Part Ii: Reflections On The (Counter)Revolution In Patent Law, Thomas F. Cotter Jan 2010

A Burkean Perspective On Patent Eligibility, Part Ii: Reflections On The (Counter)Revolution In Patent Law, Thomas F. Cotter

Articles

In 2007, I published an essay in the Berkeley Technology Law Journal, titled A Burkean Perspective on Patent Eligibility, in which I discussed how the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office had discarded various doctrines relating to patent eligibility - among them, rules that all patentable inventions must pertain to the technological arts, that they may not read on mental steps, and that patentable processes must effect a physical transformation - in favor of an approach that asked only whether an invention had practical utility and was predictable in its effects ...


Optimal Fines For False Patent Marking, Thomas F. Cotter Jan 2010

Optimal Fines For False Patent Marking, Thomas F. Cotter

Articles

Since January 1, 2010, plaintiffs have filed over three hundred lawsuits under 35 U.S.C. § 292, the false patent marking statute. Fueled in large part by recent Federal Circuit case law embracing an expansive interpretation of the statute, this uptick has alarmed some observers, who fear that patent owners whose products bear the numbers of expired or inapplicable patents could be liable for, literally, billions of dollars in fines. While Congress and the courts consider various responses, one issue that has failed to attract much notice thus far is the question of how to calculate appropriate fines for marking ...


Trademarks And The Boundaries Of The Firm, Dan L. Burk, Brett Mcdonnell Jan 2010

Trademarks And The Boundaries Of The Firm, Dan L. Burk, Brett Mcdonnell

Articles

Coase’s theory of the firm has become a familiar tool to analyze the structure and organization of businesses. Such analyses have increasingly focused on property based theories of the firm, including intellectual property. In previous work we have discussed the application of this model to patents, copyrights, and trade secrets. Here we take up the theory of the firm with regard to trademarks, which act as signals of firm reputation, and so have application and effects that differ substantially from other forms of intellectual property. Using the framework from our previous analyses, we examine the propensity of trademarks to ...


Book Review, David Weissbrodt Jan 2010

Book Review, David Weissbrodt

Articles

No abstract provided.


Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson Jan 2010

Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson

Articles

This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement this technology, future CCS operators must be able to access hundreds of millions of acres of "pore space" roughly a kilometer below the earth's surface in which to store CO2 for hundreds to thousands of ...


Returning Home: Women In Post-Conflict Societies, Naomi Cahn, Dina Francesca Haynes, Fionnuala Ní Aoláin Jan 2010

Returning Home: Women In Post-Conflict Societies, Naomi Cahn, Dina Francesca Haynes, Fionnuala Ní Aoláin

Articles

This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to addresses and remedy these complex issues. As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure. Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially. While the focus is on humanitarian aid in the midst of and ...


The Invisible Hand Of Preacquired Account Marketing, Prentiss Cox Jan 2010

The Invisible Hand Of Preacquired Account Marketing, Prentiss Cox

Articles

Preacquired account marketing is a sales practice that allows companies to charge consumers for services they do not know they ordered and do not use. The practice depends on a seller's ability to access a consumer's financial account without the consumer directly providing her account number and other access information to that seller. This flips the power dynamic in the solicitation process by shifting the burden to the consumer to stop the seller from accessing her account, rather than requiring the seller to ask the consumer for her account information before her account can be charged. This is ...


Introduction: In Flangrante Depicto, Peter Goodrich Jan 2010

Introduction: In Flangrante Depicto, Peter Goodrich

Articles

No abstract provided.


Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Malvina Halberstam Jan 2010

Judicial Review, A Comparative Perspective: Israel, Canada, And The United States, Malvina Halberstam

Articles

No abstract provided.


The Montreal Convention And The Preemption Of Air Passenger Harm Claims, Marc Mcdonald Jan 2010

The Montreal Convention And The Preemption Of Air Passenger Harm Claims, Marc Mcdonald

Articles

The article examines the evolution and present state of the law governing the preemption of passenger claims for compensation for harm arising from international air travel under the Montreal and Warsaw Conventions


Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes Jan 2010

Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes

Articles

No abstract provided.


Dog Wags Tail: The Continuing Viability Of Minority-Targeted Aid In Higher Education, Osamudia R. James Jan 2010

Dog Wags Tail: The Continuing Viability Of Minority-Targeted Aid In Higher Education, Osamudia R. James

Articles

No abstract provided.