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Full-Text Articles in Law
The Social, Psychological, And Political Causes Of Racial Disparities In The American Criminal Justice System, Michael Tonry
The Social, Psychological, And Political Causes Of Racial Disparities In The American Criminal Justice System, Michael Tonry
Articles
No abstract provided.
Custody Investigations In Divorce-Custody Litigation, Robert Levy
Custody Investigations In Divorce-Custody Litigation, Robert Levy
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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
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 its supporters …
Graham's Good News--And Not, Richard Frase
Insurance Demand Anomalies And Regulation, Daniel Schwarcz
Insurance Demand Anomalies And Regulation, Daniel Schwarcz
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No abstract provided.
Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz
Regulating Insurance Sales Or Selling Insurance Regulation?: Against Regulatory Competition In Insurance, Daniel Schwarcz
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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 …
Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz
Regulating Consumer Demand In Insurance Markets, Daniel Schwarcz
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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 …
The Efficiency Of Comparative Causation, Francesco Parisi, Ram Singh
The Efficiency Of Comparative Causation, Francesco Parisi, Ram Singh
Articles
Comparative causation is the only tort regime that allows parties to share an accident loss in equilibrium. The sharing of an accident loss between a nonnegligent injurer and his nonnegligent victim spreads activity level and R&D incentives between prospective tortfeasors and their victims. This is an effect that is never observed under the other negligence and strict liability based regimes. In spite of these interesting attributes, the existing literature left open the question as to whether loss sharing was able to maintain optimal care incentives for both parties. In this paper, we address this unresolved issue in the literature, considering …
Patent Remedies And Practical Reason, Tom Cotter
Justification Norms Under Uncertainty: A Preliminary Inquiry, Claire Hill
Justification Norms Under Uncertainty: A Preliminary Inquiry, Claire Hill
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People making decisions under uncertainty may need to justify those decisions to their reputational community. This Essay considers when and how the potential need to justify might lead a decision-maker to employ a methodology better suited to yielding a justifiable choice that may not be the best choice. When a decision involves uncertainty, the possible outcomes and probabilities are not known. A broad consensus about a methodology that produces a good decision often may not exist. But norms will often arise as to acceptable methodologies - that is, methodologies that will be accepted as justifiable if justification is needed. The …
The Process Of Balancing, Oren Gross
Pre-Employment Screening And Investigation: Navigating Between A Rock And A Hard Place, Stephen F. Befort
Pre-Employment Screening And Investigation: Navigating Between A Rock And A Hard Place, Stephen F. Befort
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No abstract provided.
Supremely Opaque: Accountability, Transparency, And Presidential Supremacy, Heidi Kitrosser
Supremely Opaque: Accountability, Transparency, And Presidential Supremacy, Heidi Kitrosser
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No abstract provided.
The Moral Responsibilities Of Investment Bankers, Richard W. Painter
The Moral Responsibilities Of Investment Bankers, Richard W. Painter
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This paper, presented as the annual law review lecture at the University of St. Thomas Law School, explores the moral obligations of investment bankers in light of the 2008 financial crisis. Topics such as disclosure to investors, the safety and soundness of investment banks, excessive risk taking, responsible use of derivative instruments, and banks’ responsibility to the community and to the financial system as a whole are discussed as issues of personal responsibility for investment bankers rather than only as subject matter for regulation directed at banking institutions. The particular perspective discussed in depth is grounded in Christian social teaching …
The Right To Counsel In Juvenile Court: Law Reform To Deliver Legal Services And Reduce Justice By Geography, Barry Feld, Shelly Schaefer
The Right To Counsel In Juvenile Court: Law Reform To Deliver Legal Services And Reduce Justice By Geography, Barry Feld, Shelly Schaefer
Articles
No abstract provided.
The Role Of The Human Rights Committee In Interpreting And Developing Humanitarian Law, David Weissbrodt
The Role Of The Human Rights Committee In Interpreting And Developing Humanitarian Law, David Weissbrodt
Articles
No abstract provided.
The Trademark Fair Use Reform Act, William Mcgeveran
The Trademark Fair Use Reform Act, William Mcgeveran
Articles
Sweeping assertions of exclusive trademark rights in brand names and images have a pernicious chilling effect on free expression, including fictional portrayals, commentary, political speech, parody, and comparative advertising. Some disputes lead to lawsuits. More often, speakers capitulate to litigation threats, even when the substance of the legal claims they face is very weak. As demonstrated in the author’s previous work, existing trademark “fair use” doctrines are not simple defenses that end suits quickly and cheaply, and many defendants cannot bear the resulting costs of protracted litigation.Observers have proposed a variety of improvements to trademark fair use, but this Article …
What Cognitive Psychologists Should Find Interesting About Tax, Claire Hill
What Cognitive Psychologists Should Find Interesting About Tax, Claire Hill
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No abstract provided.
Examining The Real Demand For Legal Services, Herbert M. Kritzer
Examining The Real Demand For Legal Services, Herbert M. Kritzer
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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
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. For decades …
Impersonal Jurisdiction, Allan Erbsen
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 …
National Security And The Article Ii Shell Game, Heidi Kitrosser
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
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, to …
Why Did Rating Agencies Do Such A Bad Job Rating Subprime Securities?, Claire Hill
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’s rating …
A Burkean Perspective On Patent Eligibility, Part Ii: Reflections On The (Counter)Revolution In Patent Law, Thomas F. Cotter
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 …
Optimal Fines For False Patent Marking, Thomas F. Cotter
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 violations. …
Returning Home: Women In Post-Conflict Societies, Naomi Cahn, Dina Francesca Haynes, Fionnuala Ní Aoláin
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 during …
Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson
Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson
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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 years. …
Trademarks And The Boundaries Of The Firm, Dan L. Burk, Brett Mcdonnell
Trademarks And The Boundaries Of The Firm, Dan L. Burk, Brett Mcdonnell
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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 lower …
Book Review, David Weissbrodt