Digital Commons Network^™

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value – individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality – have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly, and in good faith, purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property without running afoul of copyright’s distribution right. …

The Guise Of The Bad, Joseph Raz

Faculty Scholarship

My topic is the possibility of acting in the belief that the action is bad and for the reason that it is, as the agent believes, bad. On route, I examine another question – namely whether agents can, without having any relevant false beliefs, perform actions motivated by the badness of those actions. The main worry is the compatibility of action for the sake of the bad with the thesis of the Guise of the Good (roughly that actions undertaken with an intention to perform them are undertaken because they are, as the agents see things, good in some respects). …

Litigation: Time To Revisit Chevron Deference?, Jack M. Beerman, Charles J. Cooper, Thomas W. Merrill, Amy J. Wildermuth, Don R. Willett

Faculty Scholarship

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia's impact on the development of administrative law in the United States is unparalleled.

The 2015 Paris Agreement On Climate Change: Significance And Implications For The Future, Hari Osofsky, Lisa Benjamin, Michael B. Gerrard, Jacqueline Peel, David Titley

Faculty Scholarship

On December 12, 2015, nearly 200 countries created a major new agreement on climate change, accompanied by national commitments to act. The Paris Agreement has rightly been celebrated as a breakthrough, but was unquestionably constrained by the need for compromise, and its details will continue to be developed at the international, national, and local levels. On January 9, 2016, a panel of expert commentators and delegation members from a variety of national jurisdictions convened at the annual American Association of Law Schools meeting to analyze the Paris Agreement; they considered how the agreement evolved from prior efforts, the structure of …

Law In The Shadow Of Violence: Can Law Help To Improve Doctor-Patient Trust In China?, Benjamin L. Liebman

Faculty Scholarship

Can law help to address the lack of trust in doctor-patient relationships in China? This essay examines the role that law, on the books and in practice, has played in the rise and resolution of patient-doctor disputes and conflict in China. Law has generally played a secondary role in medical disputes: most patient claims never make it to court, and there is little evidence that negotiated outcomes are influenced by legal standards. Yet a legal framework weighted in favor of hospitals and doctors almost certainly exacerbated doctor-patient conflict in the 2000s. Patients facing legal procedures and rules that appeared to …

Clearing The Clouds On The Cisg's Warranty Of Title, Donald J. Smythe

Faculty Scholarship

No abstract provided.

Remarks On Executive Action And Immigration Reform, Shoba S. Wadhia

Faculty Scholarship

This essay places the President's executive actions on immigration last November into a larger context by providing a brief history of prosecutorial discretion in immigration cases. This essay also describes how law students at Penn State Law School used the President's announcement of executive actions as a platform for local change in the State College community.

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Trade, Social Preferences, And Regulatory Cooperation: The New Wto-Think, Thomas J. Bollyky, Petros C. Mavroidis

Faculty Scholarship

This paper advocates changes in the corporate governance of the World Trade Organization (WTO) to reflect the decline in tariffs and other border restraints to commerce and the emerging challenges of advancing freer trade and better regulation cooperation in a world economy dominated by global value chains. Together, these changes form an integration strategy that we refer to as the new WTO Think. This strategy remains rooted in the original rationale of the General Agreement on Trade and Tariffs (GATT) of reducing the negative externalities of unilateral action and solving important international coordination challenges, but is more inclusive of regulators …

Mfn Clubs And Scheduling Additional Commitments In The Gatt: Learning From The Gats, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Scheduling additional commitments for policies affecting trade in goods in the GATT has been plagued by two sources of ambiguity: the treatment of changes introduced unilaterally by members subsequent to an initial commitment, and the treatment of new commitments by WTO members pertaining to nontariff policy measures affecting trade in goods. This is not the case for trade in services, as the GATS makes explicit provision for additional commitments to be scheduled. Neither secondary law, in the form of decisions formally adopted by the WTO membership, nor case law has clarified the situation for trade in goods. This matter is …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

Variation In Boilerplate: Rational Design Or Random Mutation?, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard contract doctrine presumes that sophisticated parties choose their terminology carefully because they want courts or counterparts to understand what they intended. The implication of this “Rational Design” model of rational behavior is that courts should pay careful attention to the precise phrasing of contracts. Using a study of the sovereign bond market, we examine the Rational Design model as applied to standard-form contracting. In NML v. Argentina, federal courts in New York attached importance to the precise phrasing of the boilerplate contracts at issue. The industry promptly condemned the decision for a supposedly erroneous interpretation of a variant of …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

Putting Prep Into Practice: Lessons Learned From Early-Adopting U.S. Providers’ Firsthand Experiences Providing Hiv Pre-Exposure Prophylaxis And Associated Care, Sarah K. Calabrese, Manya Magnus, Kenneth H. Mayer, Douglas S. Krakower, Adam I. Eldahan, Lauren A. Gaston Hawkins, Nathan B. Hansen, Trace S. Kershaw, Kristen Underhill, Joseph R. Betancourt, John F. Dovidio

Faculty Scholarship

Optimizing access to HIV pre-exposure prophylaxis (PrEP), an evidence-based HIV prevention resource, requires expanding healthcare providers’ adoption of PrEP into clinical practice. This qualitative study explored PrEP providers’ firsthand experiences relative to six commonly-cited barriers to prescription – financial coverage, implementation logistics, eligibility determination, adherence concerns, side effects, and anticipated behavior change (risk compensation) – as well as their recommendations for training PrEP-inexperienced providers. U.S.-based PrEP providers were recruited via direct outreach and referral from colleagues and other participants (2014-2015). One-on-one interviews were conducted in person or by phone, transcribed, and analyzed. The sample (n = 18) primarily practiced …

Art Resale Royalty Options, Herbert I. Lazerow

Faculty Scholarship

A federal resale royalty law that would require payments from the reseller of art to an artist when her work is resold is under consideration. This article analyzes provisions that might be contained in such a law with comparisons to Australia, England, France and California. It begins by pointing out that these payments can be conceptualized as either a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. It analyzes the kinds of artwork on which a resale royalty should be payable, with specific attention to multiples, crafts, antiques and wine. …

Understanding The Global In Global Finance And Regulation, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Pricing Contract Terms In A Crisis: Venezuelan Bonds In 2016, Elena Carletti, Paolo Colla, Mitu Gulati, Steven Ongena

Faculty Scholarship

As of this writing in June 2016, the markets are predicting Venezuela to be on the brink of default. On June 1, 2016, the 6 month CDS contract traded at about 7000bps which translates into a likelihood of default of over 90%. Our interest in the Venezuelan crisis is that its outstanding sovereign bonds have a unique set of contractual features that, in combination with its near-default status, have created a natural experiment. This experiment has the potential to shed light on one of the long standing questions that sits at the intersection of the fields of law and finance, …

A Sovereign’S Cost Of Capital: Go Foreign Or Stay Local, Michael Bradley, Irving Arturo De Lira Salvatierra, Mitu Gulati

Faculty Scholarship

A critical question faced by any sovereign seeking to raise funds in the bond market is whether to issue the debt under foreign or local parameters. This choice determines other key characteristics of any bond issue such as which banks, lawyers, and investors will be involved. Most important though, this decision involves a tradeoff between the sovereign retaining discretion in managing the issue and relinquishing control of the issue to third parties to prevent the sovereign from expropriating wealth from bondholders in the future. Based on a sample of 17,349 issuances by 117 sovereigns between 1990 and 2015, we investigate …

Law And Project Finance, Krishnamurthy V. Subramanian, Frederick Tung

Faculty Scholarship

We investigate Project Finance as a private response to inefficiencies created by weak legal protection of outside investors. We offer a new illustration that law matters by demonstrating that for large investment projects, Project Finance provides a contractual and organizational substitute for investor protection laws. Project Finance accomplishes this by making cash flows verifiable through two mechanisms: (i) contractual arrangements made possible by structuring the project within a single, discrete entity legally separate from the sponsor; and (ii) private enforcement of these contracts through a network of project accounts that ensures lender control of project cash flows. Comparing bank loans …

Can Corpus Linguistics Help Make Originalism Scientific, Lawrence Solan

Faculty Scholarship

No abstract provided.

Is The Constitution Special?, Nelson Tebbe, Christopher Serkin

Faculty Scholarship

No abstract provided.

The Reciprocal Of Macpherson V. Buick Motor Company, Anita Bernstein

Faculty Scholarship

No abstract provided.

Ev'ry American Experiment Sets A Precedent: Why One Florida State Court's Bitcoin Opinion Is Everyone's Business, Meg Holzer, Allison Caffarone

Faculty Scholarship

No abstract provided.

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

Truth And Legitimacy (In Courts), Kenneth S. Klein

Faculty Scholarship

This Article draws upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as Supreme Court decisions, to develop an articulation of the meaning, role, and importance of truth in courts. It is frequently articulated that trials are a search for truth. But as insiders to the judicial system know, if this is so then it is a meaning of truth that differs what truth means in any other context. And exposing this definitional dissonance in turn exposes that the legitimacy of the courts rests on …

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Faculty Scholarship

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

Inefficiently Automated Law Enforcement, Woodrow Hartzog, Gregory Conti, John Nelson, Lisa A. Shay

Faculty Scholarship

For some crimes the entire law enforcement process can now be automated. No humans are needed to detect the crime, identify the perpetrator, or impose punishment. While automated systems are cheap and efficient, governments and citizens must look beyond these obvious savings as manual labor is replaced by robots and computers. Inefficiency and indeterminacy have significant value in automated law enforcement systems and should be preserved. Humans are inefficient, yet more capable of ethical and contextualized decision-making than automated systems. Inefficiency is also an effective safeguard against perfectly enforcing laws that were created with implicit assumptions of leniency and discretion. …

Recurring Issues In Indian Gaming Compact Approval, Kevin Washburn

Faculty Scholarship

Achieving agreement between a state and a tribe, and then achieving ratification of that agreement through state and tribal legislative processes, are challenging endeavors. Failing to account for the need for federal approval can undermine the entire negotiation process. The purpose of this article is to highlight several recurring problem areas that can place compact approval at risk. These include the requirement in IGRA that a compact avoid issues that are not germane to gaming,that the compact avoid regulating Class II gaming,which is beyond state authority, and the requirementthat the state avoid expanding its reach over ancillary services and spaces …