Law Commons^™

Hyperbole And The Laws Of Evidence: Why Chicken Is Generally Wrong, A Ten Year Retrospective On Fre 413-415, Thomas A. Vogele

Thomas A Vogele

The Federal Rules of Evidence 413 through 415 were hailed by their proponents as a critical tool in combating the scourge of rape and child sexual assault. The new rules' critics claimed that passage of such radical changes would be the death knell for due process, civil liberties, and the presumption of innocence.

As with so many hotly debated issues in our hyper-polarized society, the truth lay somewhere in between. This paper examines the rules, the hype in favor and against them, the objective statistics, and why the passage of the new rules was not so much a radical departure …

An Enhanced Standard For Redefining Obviousness: Why Ksr Does Not Work And A Proposed Solution To A Subjectivity Problem, Aaron Davis

Aaron P. Davis

This paper will evaluate the background and evolution of the obviousness requirement of patentability established by 35 U.S.C. § 103, including an in-depth analysis of the landmark decision in KSR v. Teleflex and its subsequent confirmation in Leapfrog v. Fisher-Price. Next, the study will explain why the Supreme Court decision in KSR is ineffective and propose a solution to the KSR problem using a hybrid test, to be explained further, which generally combines the elements of the Graham test with the standard TSM approach adopted by the Federal Circuit post-Graham, and institutes a grace period by which an inventor will …

The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And "Expressly" Delegated Power, Kurt T. Lash

Kurt T. Lash

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to …

The Economic Costs And Benefits Of Self-Managed Teams Among Skilled Technicians, Rosemary Batt

Rosemary Batt

This paper estimates the economic costs and benefits of implementing teams among highly-skilled technicians in a large regional telecommunications company. It matches individual survey and objective performance data for 230 employees in matched pairs of traditionally-supervised and self-managed groups. Multivariate regressions with appropriate controls show that teams do the work of supervisors in 60-70% less time, reducing indirect labor costs by 75 percent per team. Objective measures of quality and labor productivity are unaffected. Team members receive additional overtime pay that represents a 4-5 percent annual wage premium, which may be viewed alternatively as a share in the productivity gains …

What Explains Insider Trading Restrictions? International Evidence On The Political Economy Of Insider Trading Regulation, Laura N. Beny

Law & Economics Working Papers Archive: 2003-2009

This article investigates the determinants of insider trading regulation across countries. The article presents a political economy analysis of such regulation that takes into account both private (distributional) and public (economic efficiency) considerations. The model cannot be tested directly because the relevant private preferences and social costs are unobservable. However, existing theories of capital market development suggest that various observable social factors can explain the diversity of insider trading policies across countries. In turn, these social factors should reveal the underlying preferences and social costs motivating such regulation.

The main finding, based on data from a cross section of countries …

Another Kind Of Justice: Transitional Justice As Recognition, Frank Haldemann

frank haldemann

What criteria of justice should guide societies emerging from mass atrocity? This question lies at the heart of the ongoing debate on “Transitional Justice.” It has become commonplace in mainstream Transitional Justice discourse to speak as though we were presented with an either/or choice: retributive or restorative justice? In arguing that this is a false antithesis, this essay elaborates on the idea of “justice as recognition”—the kind of justice that is involved in recognizing the victims of massive wrongs, and thereby acknowledging their human and civic worth. This argument is developed through a series of critical engagements with recent works …

Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan

Articles & Book Chapters

"I am honoured to have been invited to be a panelist in such distinguished company at this important event. I am particularly attracted to the invitation in the title of the Symposium to reflect upon the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler. In reflecting upon the case, its significance and legacy, I want to talk about the importance of history, the contradictory nature of law and the enduring importance of ideology."

Is Protecting Sunk Investments By Consumers A Key Rationale For Natural Monopoly Regulation?, Darryl R. Biggar

Darryl R Biggar

Why regulate natural monopolies? Conventional economic theory points to the price-marginal cost margin and the ensuing deadweight loss. But this hypothesis does a poor job of explaining the way that regulators behave in practice. In particular, regulators have tended to eschew forms of price discrimination, including Ramsey pricing and peak-load pricing, and have actively pursued stable pricing. When pressed, regulators justify rejection of the conventional theory on the grounds of pursuit of “fairness’ or “equity”. Could it be that the conventional economic justification for natural monopoly regulation is flawed? Some economists have emphasised the role of regulation in protecting the …

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

All Faculty Scholarship

This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under …

Immigration Posses: U.S. Immigration Law And Local Enforcement Practices, Kevin J. Fandl

Kevin J Fandl

The failure of the United States Congress to pass comprehensive immigration legislation at a time when the issue of immigration has reached a boiling point has created an overwhelming demand by citizens for local reform. States have responded by enacting hundreds of laws that regulate immigration at the state-level. This creates significant tension both between states with conflicting laws, which creates havens in some states and rampant enforcement in others, and between states and the federal government, which is ultimately responsible for regulating immigration law. This article examines the history of immigration legislation since the founding of the United States …

The Uneven Playing Field Part Iv: The Bad Faith Request Under Youngblood, Michael P. Hilferty

Michael Hilferty

No abstract provided.

January 23, 2008: Martin Luther King, Jr., Bruce Ledewitz

Hallowed Secularism

Martin Luther King, Jr.

The Paulson Report Reconsidered: How To Fix Securities Litigation By Converting Class Actions Into Issuer Actions, Richard A. Booth

Working Paper Series

This short essay considers the findings and recommendations of the Paulson Report relating to securities fraud class actions under the 1934 Act and Rule 10b-5. While the report exposes numerous problems with securities litigation in the United States, it understates the problems inherent in stock-drop actions. As a result, the report fails to propose an effective fix. As the report recognizes, diversified investors gain nothing from stock-drop actions: Because the corporation pays, holders effectively reimburse buyers and sellers keep their gains. In other words, the system suffers from circularity akin to a game of musical chairs in that stock-drop actions …

Is The Internet A Viable Threat To Representative Democracy?, David M. Thompson

Duke Law & Technology Review

The Internet, despite its relatively recent advent, is critical to millions of Americans’ way of life. Although the Internet arguably opens new opportunities for citizens to become more directly involved in their government, some scholars fear this direct involvement poses a risk to one of the Constitution’s most precious ideals: representative democracy. This iBrief explores whether the constitutional notion of representation is vulnerable to the Internet’s capacity to open new vistas for a more direct democracy by analyzing statistics and theories about why voters in the United States do or do not vote and by examining the inherent qualities of …

Vol. 34, No. 02 (January 22, 2008)

Indiana Law Annotated

No abstract provided.

On Intellectual Property Disputes Between The United States And China, Zhiping Liu

Zhiping Liu

This paper evaluates the root causes and proposes appropriate policy response to the ongoing dispute between the United States and China over China’s apparent failure to enforce the intellectual property rights of Western business interests.

After reviewing other approaches, this paper applies a microeconomic approach to analyze the dispute and concludes that Western business interests’ failure to receive adequate protection of their intellectual property rights in China today is largely due to the exorbitant prices they charge on their intellectual property products. The disparity between the actual purchasing power of Chinese consumers and the exorbitant prices charged by Western businesses …

Misplaced Jurisdiction, Kevin Washburn

Faculty Scholarship

Interview discussing felonies and jurisdiction on Tribal land.

Engines Of Inequality: Class, Race, And Family Structure, Amy L. Wax

All Faculty Scholarship

The past 30 years have witnessed a dramatic divergence in family structure by social class, income, education, and race. This article reviews the data on these trends, explores their significance, and assesses social scientists’ recent attempts to explain them. The article concludes that society-wide changes in economic conditions or social expectations cannot account for these patterns. Rather, for reasons that are poorly understood, cultural disparities have emerged by class and race in attitudes and behaviors surrounding family, sexuality, and reproduction. These disparities will likely fuel social and economic inequality and contribute to disparities in children’s life prospects for decades to …

Bundles Of Hope: Putting Aspirations In Order, Marc A. Morgan

Marc A. Morgan

The primary purpose of this paper is to discuss cardinal utility theories of how aspiration affects negotiation and to propose an alternative ordinal utility theory of how aspiration affects negotiation. In the cardinal utility theories, used by some legal scholars, aspiration in negotiation is a utility maximizing point after which negotiators become increasingly loss averse. While in the ordinal utility theory this paper proposes, aspiration in negotiation is a goal that maximizes utility subject to constraints and subjective preferences.

Restoring Justice To Civil Rights Movement Activists?: New Historiography And The “Long Civil Rights Era”, Athena D. Mutua

Athena D. Mutua

The paper engages ongoing discussions about the Civil Rights and Restorative Justice Project. This Project has been organized to support efforts to rectify and account for the tremendous cost to civil rights activists and supporters of participating in the civil rights movement. These efforts include, for instance, fresh prosecutions against perpetrators of old hate crimes, including cases against the killers of Medger Evers and the three Mississippi Freedom Summer workers. The question the paper asks is: what do Project participants mean when they talk about the civil rights era? The short answer is that the Project organizers initially conceptualized the …

January 20, 2008: God, Bruce Ledewitz

Hallowed Secularism

God

The Safe Harbour Agreement And Maintaining Status Quo, Linda Margaret Broughton

Linda Margaret Broughton

In particular, this paper will consider an international legal negotiation between the European Union (EU), inclusive of its Member States, and the United States of America. The negotiations discussed in this paper were inspired by interpretations of the 1995 European Data Privacy Directive 95/46/EC with regard to private data collection by private companies operating in the USA and the EU. These negotiations resulted in the Safe Harbour Agreement. Despite the historical and current political, legal and commercial interaction between these international actors (and their composite States and states), the negotiations triggered around the EU Privacy Directive denote the potential legal …

Untying The Gordian Knott: A Proposal For Determing Applicability Of The Laws Of War To The War On Terror, Geoffrey S. Corn, Eric T. Jensen

Geoffrey S. Corn

For the past six years, one of the most difficult questions related to law and war has been when do the laws of war apply to the war on terror? From 1949 through 2001, a state-centric law triggering paradigm evolved into almost an article of faith among the international legal and military community. The events of September 11th, 2001 however threw this paradigm into disarray. Since that time, the United States has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Unfortunately, responding …

S.Sepe(2007): "Private Sale Of Corporate Control: Why The European Mandatory Bid Rule Is Inefficient" Discussion, Carlo Drago

Carlo Drago

No abstract provided.

Brief Of Amicus Curiae Aarp In Support Of Respondents, Warner-Lambert Company Llc V. Kent, No. 06-1498 (U.S. Jan. 18, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman

Faculty Scholarship

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles …

Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman

Faculty Scholarship

Seeking to redress health disparities across income and race, many policy-makers mandate health insurance benefits, presuming that equalized benefits will help equalize use of beneficial health services. This paper tests that presumption by measuring health care use by a diverse population with comprehensive health insurance. Focusing on use of mental health care and pharmaceuticals, it finds that even when insurance benefits and access are constant, whites and those with high incomes consume more of these benefits than other people do. This suggests that privileged classes extract more health care services even when everyone pays equal premiums for equal insurance coverage.

One Of The Most Bizarre Laws On Htrae, Timothy O'Neill

Timothy P. O'Neill

Tax Incentives: A Solution To Economic Uncertainty, Jared A. Hermann

Jared A Hermann

The article compares current economic conditions within the United States to those conditions present in the quarters preceding the 2001 recession. The article also discusses the interrelationship between consumer confidence levels and economic activity. The purpose of this article is to address the current economic uncertainty within the United States and recommend as a solution the temporary extension of the capital gains and dividend tax cuts of the Jobs and Growth Tax Relief Reconciliation Act of 2003. Such an extension will restore confidence in the economy by incentivizing investment activity and enhancing economic growth. In light of recent developments concerning …

Fairness In Health Care: Who Pays? Who Benefits?, Clark C. Havighurst

Clark C Havighurst

Abstract: Lower- and middle-income Americans with private health coverage pay not only to protect their own families’ health but also to support a vast health care enterprise that primarily benefits others. The system is able to finance itself in part because U.S.-style health insurance greatly amplifies price-gouging opportunities for health care firms with true market power; even though the resulting excess profits often cross-subsidize seemingly desirable activities, the substantial cost burden falls ultimately on premium payers like a severely regressive (i.e., unfair) “head tax.” Lower-income premium payers also bear excessive costs for their own health care. For one thing, they …