Digital Commons Network^™

Intellectual Disability, The Death Penalty, And Jurors, David L. Faigman, Emily V. Shaw, Nicholas Scurich

Faculty Scholarship

No abstract provided.

Comparative Law, Geopolitics, And The Conflict In Palestine: Disciplined Disengagement And The Commons Solution, Ugo Mattei

Faculty Scholarship

No abstract provided.

The Metaphysics Of Arbitration: A Reply To Hensler & Khatam, Hiro Aragaki

Faculty Scholarship

No abstract provided.

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

Public Requitals: Corrective, Retributive, And Distributive Justice, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.

The History Of The University Of New Mexico School Of Law Librarians' Fight For Faculty Status And Equal Voting Rights, Ernesto A. Longa

Faculty Scholarship

Based on research of over sixty years of archival records, this article presents a case study of the University of New Mexico School of Law librarians’ fight for respect, professional recognition, faculty status, and voting rights in the face of persistent opposition from law school administrators, faculty, and head librarians.

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Faculty Scholarship

This article examines legal issues regarding hydropower, fish and wildlife at federal water projects in the West. It begins by briefly explaining the legal and institutional framework for federal water projects that generate hydropower. The following section summarizes relevant laws and policies for fish and wildlife protection in relation to federal hydropower operations, focusing primarily on the application of the ESA in this context. The article then considers the case of Glen Canyon Dam, where the Bureau and the National Park Service recently adopted a new operating plan after an extensive review that addressed hydropower, the needs of two very …

English Justice For An American Company?, Christopher French

Faculty Scholarship

This Essay addresses the Halliburton Co. v. Chubb Bermuda Insurance Ltd. case, which is pending before England's Supreme Court. The issue before the Court is whether it is appropriate for the "neutral" arbitrator, who has a history of serving as a party-appointed arbitrator for Chubb, to serve as the "neutral" arbitrator in the matter while simultaneously serving as a party-appointed arbitrator for Chubb in another related arbitration proceeding involving the same insurance policy form and the same underlying Deepwater Horizon incident. The lower courts declined to remove the arbitrator. The Essay also addresses the question of whether London arbitration proceedings …

A Private Law Court In A Public Law System, Jamal Greene

Faculty Scholarship

The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others …

Greeted With A Shrug: The Impact Of The Community Design System On United States Law, Stacey Dogan

Faculty Scholarship

In an era of increased harmonization of intellectual property laws worldwide, the United States’ treatment of product design looks like an anomaly. Since the European Community Design System went into effect in 2002, advocates in the US have urged Congress to follow suit and adopt sui generis design protection, particularly for fashion. The US Congress, however, has resisted the call and left design protection to the existing standards of trademark, copyright and design patent law.

This Chapter explores some of the reasons that the Community Design System has had so little purchase in US debates over design. The rejection of …

Can Rationing Through Inconvenience Be Ethical?, Nir Eyal, Paul Romain, Christopher Robertson

Faculty Scholarship

In this article, we provide a comprehensive analysis and a normative assessment of rationing through inconvenience as a form of rationing. By “rationing through inconvenience” in the health sphere, we refer to a non-financial burden (the inconvenience) that is either intended to cause or has the effect of causing patients or clinicians to choose an option for health‐related consumption that is preferred by the health system for its fairness, efficiency, or other distributive desiderata beyond assisting the immediate patient. We argue that under certain conditions, rationing through inconvenience may turn out to serve as a legitimate and, compared to direct …

The Macpherson-Henningsen Puzzle, Victor P. Goldberg

Faculty Scholarship

In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Review: Ralph Wedgwood, The Value Of Rationality, Joseph Raz

Faculty Scholarship

A short review of Wedgwood's book, describing its outline, and main theses with a few evaluative observations.

Last Mile For Tuna (To A Safe Harbor): What Is The Tbt Agreement All About?, Petros C. Mavroidis

Faculty Scholarship

The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). It does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it into …

The Rise Of Foreign Ownership And Corporate Governance, Merritt B. Fox

Faculty Scholarship

This chapter explores the link between corporate governance and the rise of foreign ownership. It presents statistics that illustrate the dramatic rise in foreign ownership over the last few decades and then seeks to explain this rise and its relationship to corporate governance. In order to situate the subject under study within its larger context, this explanation starts with an exploration of the factors independent of corporate-governance considerations that favor a global market for securities and those that impede it. It will be shown that the rise in foreign ownership globally can be explained in significant part by the weakening …

Cross-Examination In International Arbitration: A Clash Among Common Law Traditions, Robert H. Smit

Faculty Scholarship

Cross-examination, like it or not, has become a regular feature of international arbitration. As with other procedural cross-roads converging upon international arbitration from different legal traditions, cross-examination invites controversy and debate. This tends to focus on the procedural differences between civil-law “inquisitorial” and common-law “adversarial” systems, and how they inform the (un)desirability of cross-examination, or the need to modify it, in international arbitration. Less explored is how the practice of cross-examination differs in different common-law jurisdictions, including between prominent arbitral seats in the United States and England, Hong Kong and Singapore among others, and how those differences inform the approach …

Counter-Critical Theory: An Intervention In Contemporary Critical Thought And Practice, Bernard E. Harcourt

Faculty Scholarship

Walter Benjamin and Bertolt Brecht's short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates …

A Reader’S Guide To John Milton’S Areopagitica, The Foundational Essay Of The First Amendment Tradition, Vincent A. Blasi

Faculty Scholarship

Fittingly, the most imaginative and densely suggestive of the classic arguments for free speech was written by a poet. Had his career unfolded as he wished, John Milton would never have produced his renowned Areopagitica of 1644. It was only with great reluctance that he undertook to engage in prose polemics during the English Civil War, sacrificing his “calm and pleasing solitariness” to “embark in a troubled sea of noises and hoarse disputes.” He described pamphleteering as something he did “with the left hand” all the while “knowing myself inferior to myself.” Posterity, always a Miltonic concern, has begged to …

Fulfilling States’ Duty To Evaluate Medicaid Waivers, Kristen Underhill, Atheendar Venkataramani, Kevin G. Volpp

Faculty Scholarship

Nearly 75 million U.S. residents have health insurance coverage through Medicaid. Benefits and program designs vary from state to state. One source of state-based variation is Section 1115 projects, which are defined as “experimental, pilot, or demonstration” programs that are “likely to assist in promoting the objectives” of the Medicaid statute. States seeking to implement experimental policies in their Medicaid programs must apply to the Centers for Medicare and Medicaid Services (CMS) for a Section 1115 waiver, which lifts certain federal regulations for 5 years. Thirty-seven states had active Section 1115 waivers as of October 31, 2018, and more than …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

Foreign Authors' Enforcement Of U.S. Reversion Rights, Jane C. Ginsburg

Faculty Scholarship

Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene. I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right.

First, however, I’d like to advert to the two goals Rebecca Giblin referenced in her talk. One is remuneration, the other is dissemination. Author-protective laws in other countries also address dissemination. As Séverine Dusollier mentioned, a number of national laws include an obligation to exploit the work: if the publisher does not exploit the work, …

The Administrative Evasion Of Procedural Rights, Philip A. Hamburger

Faculty Scholarship

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …

Unintended Agency Problems: How International Bureaucracies Are Built And Empowered, Anu Bradford, Stavros Gadinis, Katerina Linos

Faculty Scholarship

The ground underneath the entire liberal international order is rapidly shifting. Institutions as diverse as the European Union, International Monetary Fund, United Nations, and World Trade Organization are under major threat. These institutions reflect decades of political investments in a world order where institutionalized cooperation was considered an essential cornerstone for peace and prosperity. Going beyond the politics of the day, this Article argues that the seeds of today’s discontent with the international order were in fact sown back when these institutions were first created. We show how states initially design international institutions with features that later haunt them in …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Competition Law Gone Global: Introducing The Comparative Competition Law And Enforcement Datasets, Anu Bradford, Adam S. Chilton, Chris Megaw, Nathaniel Sokol

Faculty Scholarship

Competition law has proliferated around the world. Due to data limitations, however, there is little systematic information about the substance and enforcement of these laws. In this paper, we address that problem by introducing two new datasets on competition law regimes around the world. First, we introduce the Comparative Competition Law Dataset, which codes competition laws in 130 jurisdictions between 1889 to 2010. Second, we introduce the Comparative Competition Enforcement Dataset, which provides data on competition agencies’ resources and activities in 100 jurisdictions between 1990 and 2010. These datasets offer the most comprehensive picture of competition law yet assembled and …

Reckoning Contract Damages: Valuation Of The Contract As An Asset, Victor P. Goldberg

Faculty Scholarship

When a contract is breached the law in most jurisdictions provides some version of the aphorism that the non-breaching party should be made whole. Application of the aphorism has proven problematic, particularly for anticipatory repudiations. This paper argues for a general principle that should guide application – the contract is an asset and the problem is one of valuation of the change in value of that asset at the time of the breach. This provides a framework that will help clear up some conceptual problems in damage assessment. The focus is on direct damages, not consequential damages.

The paper begins …

The Lost Volume Seller In English Law, Victor P. Goldberg

Faculty Scholarship

If a buyer breaches a contract but the market price has remained unchanged, English courts and the treatises have treated the seller as a “lost volume seller.” The seller, it is argued, could have had two sales, not one, so it lost the profit on the second sale. This paper recognizes that the buyer has an option to terminate and that the contract prices that option. The implicit option price of the lost volume remedy results in an absurd contract, setting the option price high when it should be low and vice versa. The default rule ought to be the …