Digital Commons Network^™

Erisa & Uncertainty, Brendan S. Maher, Peter K. Stris

Faculty Scholarship

In the United States, retirement income and health insurance are largely provided through private promises made incident to employment. These “benefit promises” are governed by a statute called ERISA, which many healthcare and pension scholars argue is the cause of fundamental problems with our nation’s health and retirement policy. Inevitably, however, they advance narrowly tailored proposals to amend the statute. This occurs because of the widely-held view that reform should leave undisturbed the underlying core of the statute. This Article develops a theory of ERISA designed to illustrate the unavoidable need for structural reform.

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Faculty Scholarship

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Imperfect Alternatives: Networks, Salience, And Institutional Design In Financial Crises, Robert B. Ahdieh

Faculty Scholarship

With the benefit of hindsight — and some aspiration to foresight — it is useful to consider the type of regulatory regime that might best address financial crises. What could policymakers have done to prevent the recent crisis? And once the crisis started, what interventions might have alleviated it? These questions have been widely debated, with an eye to both substantive policy and the design of effective regulatory institutions. This Article speaks to the latter project — one of comparative institutional analysis — though with a framework that implicates our substantive policy choices as well. It begins with an account …

Social Semiotics In The Fair Use Analysis, H. Brian Holland

Faculty Scholarship

Fair use is perhaps the most contested doctrine in all of copyright law. New technologies that not only enable increased audience engagement with cultural works, but also facilitate the use of these "raw materials" to produce new works have made fair use more controversial. At another level, these technologies have made visible an audience, not of passive content consumers, but of active participants in discourse around and about those works.

This Article presents an argument for an expansion of fair use based on social semiotic theory, rather than on theories of authorship or rights of autonomy of subsequent authors. Instead, …

Should The Patient Conquer?, William M. Sage

Faculty Scholarship

In 1596, Robert Bainbridge carved “The patient shall conquer” into the wall of his cell in the Tower of London. It is highly unlikely that Bainbridge was an early advocate for recipients of medical care, imprisoned perhaps by a cruel sheriff denied his payroll taxes or by a domineering barber refused his fee. But its unintended meaning would immediately provoke sympathy from many health care reformers. As we confront the critical challenges of implementing national health-care reform, however, whether the patient should conquer is a legitimate topic for debate. Does the patient’s conquest risk the collapse of the health-care system …

The Civil Judicial Subsidy, Brendan S. Maher

Faculty Scholarship

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants?

I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …

How Lawyers (Come To) See The World: A Narrative Theory Of Legal Pedagogy, Randy D. Gordon

Faculty Scholarship

Even if one believes that law is not an autonomous discipline, few would dispute that it is a conservative institution and that its members are trained via a pedagogical method quite different from that of other professions. A central aspect of this training is the case method and — thus — the specialized narrative form that appellate opinions take. This essay examines the case method and suggests ways to crack it open — without discarding it — and thereby achieve one of the goals set forth in the Carnegie Report: namely, to supplement the analytical, rule-based mode of reasoning inherent …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney Jr

Faculty Scholarship

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

Roll Over Langdell, Tell Llewellyn The News: A Brief History Of American Legal Education, Stephen R. Alton

Faculty Scholarship

The origin of this essay is a presentation the author made at the Office of the Attorney General of the State of Texas on December 10, 2008. This essay is derived from the author's presentation, which originally was entitled "A Brief and Highly Selective History of American Legal Education and Jurisprudence. " In this essay, the author provides an overview of the history and development of legal education in America, emphasizing the establishment and evolution of the case method of instruction in American law schools and focusing on the influence of American jurisprudence on the development of legal education in …

Wto Jurisprudence & Its Critiques: The Appellate Body's Anti-Constitutional Resistance, William Magnuson

Faculty Scholarship

In a time of financial crisis and rising demand for economic protectionism, the World Trade Organization, promoting free trade and economic growth, has never been more important. Enforcement of the WTO’s provisions has grown increasingly contentious and high-stakes, and the Appellate Body empowered to rule on violations of the treaty has received harsh criticism. Three elements of WTO jurisprudence, in particular, stand out. First, the court’s excessive use of narrow textualist argument tends to lead to short-sighted decisions that give little guidance to member states. Second, the court’s decisions have increasingly interfered with sensitive democratic processes in sovereign countries. Third, …

Holding The World Bank Accountable For The Leakage Of Funds From Africa’S Health Sector, Fatma E. Marouf

Faculty Scholarship

This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

Privacy Paradox 2.0, H. Brian Holland

Faculty Scholarship

As a starting point, this essay offers six basic propositions. First, "the 'privacy paradox' " refers to inconsistencies "between individuals' [asserted] intentions to disclose personal information and [individuals'] actual ... disclosure behaviors." Put simply, we indicate-at a granular level-specific items of personal information that we will not disclose, but we then give away that same data with what appears to be little regard for the risks of doing so and for little in return. Second, the privacy paradox is a wellestablished concept in many fields of the social sciences, even though the precise contours and causes of the paradox are …

The Political Economy Of Data Protection, Peter K. Yu

Faculty Scholarship

Information is the lifeblood of a knowledge-based economy. The control of data and the ability to translate them into meaningful information is indispensable to businesspeople, policymakers, scientists, engineers, researchers, students, and consumers. Having useful, and at times exclusive, information improves productivity, advances education and training, and helps create a more informed citizenry. In the past two decades, those who collected or obtained access to a large amount of data began to explore ways to use the collected data as an income stream. Because the then-existing laws did not offer adequate protection for that particular purpose, they actively lobbied for stronger …

Pining For Sustainability, Timothy M. Mulvaney

Faculty Scholarship

The survey results discussed in Part I below reveal substantial paper consumption excesses in the existing law journal system. Though only thirty-three primary law journals responded to the survey, making extrapolation across the general population of all law journals difficult, the aggregate data is illuminating nonetheless. Based upon a very conservative evaluation of the data set, the respondent journals reported printing nearly seventeen million pages of paper in the one-year term of the 2008-2009 editorial boards. Isolated practices proved particularly disconcerting. For instance, one journal reported printing a full, single-sided copy of each of the more than two thousand electronically …

Understanding And Regulating The Sport Of Mixed Martial Arts, Brendan S. Maher

Faculty Scholarship

The past fifteen years have seen the emergence of a new sport in America and around the world: mixed martial arts (“MMA”). MMA is an interdisciplinary combat sport whose participants engage in and combine a variety of fighting disciplines (e.g., kickboxing, wrestling, karate, jiu-jitsu, and so on) within one match.

In this Article, I examine and analyze the sport’s evolution, articulate a theory of sporting legitimacy, supply a conceptual taxonomy of regulation, and highlight potential reform. More specifically, my foundational treatment proceeds as follows. I first explain the modern history and development of MMA, tracing it from its shaggy, brutish …

Combating Antimicrobial Resistance: Regulatory Strategies And Institutional Capacity, William M. Sage, David A. Hyman

Faculty Scholarship

Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some …

Scientific, Legal, And Ethical Foundations For Texas Water Law, Gabriel Eckstein, Amy Hardberger

Faculty Scholarship

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns.

Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Faculty Scholarship

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

State Liability, Giuseppe Dari-Mattiacci, Nuno Garoupa, Fernando Gomez-Pomar

Faculty Scholarship

Should states be liable towards individuals for failure to provide justice, good roads, or timely administrative decisions? In this article, we show that state liability can serve three different purposes, none of which implies that the state should be liable in tort, unless other specific conditions are met. One purpose is to provide incentives for state agencies and private individuals to act efficiently. Here, the effectiveness of liability depends on the channelling of incentives down the chain of command to the acting state employee. The second purpose of state liability is to remove incentives for private parties, when these incentives …

Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly

Faculty Scholarship

At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.

My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …

Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter

Faculty Scholarship

Mix tapes are the classic, iconic form of music sharing. Mix tape creators of the past believed they were making a piece of art larger than the sum of its parts. And even in the face of technological development so rapid and far-reaching as to remove the literal "tape" from "mix tape," there are nonetheless modem incarnations that crop up on a regular basis, from mix CDs to mix-sharing websites. The technology is different, but the song remains the same.

Who Wants To Be A Muggle? The Diminished Legitimacy Of Law As Magic, Mark Edwin Burge

Faculty Scholarship

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal …

Enforcement, Economics And Estimates, Peter K. Yu

Faculty Scholarship

This article focuses on intellectual property enforcement, a topic that is of great importance to both developed and less developed countries. It begins by refuting the simple, and often politically motivated, claim that many countries fail to provide effective intellectual property enforcement by virtue of their lack of political will. Drawing on the latest economic literature, this article shows that high enforcement standards come with a hefty price tag and difficult trade-offs.

The article then outlines the challenges in measuring the cross-border economic impact of piracy and counterfeiting. As an illustration, the article discusses the ongoing effort by the US …