Digital Commons Network^™

By Any Other Name?: On Being “Regarded As” Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

Faculty Scholarship

Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry. The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown …

Pharmaceutical Arbitrage: Balancing Access And Innovation In International Prescription Drug Markets, Kevin Outterson

Faculty Scholarship

While neoclassical economic theory suggests that arbitrage will undermine global differential pricing of pharmaceuticals, the empirical results are more complex. Pharmaceutical regulation, IP laws, global trade agreements, and company policies support differential pricing despite the pressure of arbitrage. For essential access programs in particular, the theoretical threat of pharmaceutical arbitrage is shown to be rarely observed empirically. Counterfeiting is demonstrated to be the more serious threat. These conclusions call for changes in the U.S. PEPFAR program for AIDS and in the implementation of the WTO TRIPS Agreement.

A more fundamental question, however, is whether pharmaceutical differential pricing is appropriate for …

Calabresi And The Intellectual History Of Law And Economics, Keith N. Hylton

Faculty Scholarship

This essay traces the vein of thought represented by Calabresi's "The Costs of Accidents", both backward in time to examine its sources, and forward to its impact on current scholarship. I focus on three broad topics: positive versus normative law and economics, positivist versus anti-positivist thinking in law, and the assumption of rationality in law and economics.

Harry Potter And The Law, Jeffrey E. Thomas, James Charles Smith, Danaya Wright, Benjamin H. Barton

Faculty Scholarship

The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories.

Lost In Translation: From U.S. Corporate Charter Competition To Issuer Choice In International Securities Regulation, Frederick Tung

Faculty Scholarship

Corporate charter competition among U.S. states has been held out as a model of welfare-enhancing regulatory competition. Proponents of this story also rely on it as a basis for promoting regulatory competition in international securities regulation. Issuer choice proponents argue that an issuer of securities should be permitted to choose the securities regulation of any nation to govern its securities offerings and trading worldwide. This Article challenges the notion that the claimed success of corporate charter competition among U.S. states argues in favor of issuer choice for international securities regulation.

Even granting the assumptions of race-to-the-top advocates and accepting the …

Private Disputes And The Public Good: Explaining Arbitration Law, William W. Park

Faculty Scholarship

At least two intersecting questions lurk in any study of international business arbitration. Each arises from the litigants' desire (at least when the contract was signed) for binding dispute resolution outside the framework of government-administered courts. Each brings analytic challenges that implicate cross-cultural conflicts.

Family Privacy And Death: Antigone, War, And Medical Research, George J. Annas

Faculty Scholarship

Death ends the doctor–patient relationship, and legally the patient's right of privacy dies with the patient. Other privacy interests survive, the most central of which are those of the patient's family to bury the body and to prevent the disclosure of some personal information, such as medical information, about the deceased relative. Just what privacy interests encompass and when they can be overridden by other interests — such as freedom of speech or the claims of public policy or medical research — are evolving.1 Family privacy concerning a family member who has died is at the forefront of a …

The Nature Of Arbitral Authority: A Comment On Lesotho Highlands, William W. Park

Faculty Scholarship

Arbitration unfolds within an enclosure created by the contract terms and the applicable arbitration law. Some measure of judicial scrutiny must be imposed to ensure that an award does not fall beyond an arbitrator’s authority. But how should one identify excess of authority? The House of Lords decision in Lesotho Highlands v. Impreglio serves as a prism through which to separate several themes that inhere in the nature of arbitral authority. In rejecting arguments that an error about the currency of an award represented an excess of jurisdiction, their Lordships confirmed a healthy appreciation that arbitrators do not exceed their …

The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation And Global Public Health, Kevin Outterson

Faculty Scholarship

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the US Surgeon General declared victory over infectious diseases in the US. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains with the least fitness cost. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency (AIDS) virus develop resistance to anti-retroviral …

Revisiting Medical Error: Five Years After The Iom Report, Have Reporting Systems Made A Measurable Difference, Maxine M. Harrington

Faculty Scholarship

Although the goal of patient safety is a laudable one, it is questionable whether state and national policy can be made on so vague a concept as "medical error." There is neither an accurate baseline nor reliable current data that could be used to validate the effectiveness of reporting systems as tools for improving patient safety. This Article examines the difficulty in estimating the incidence of medical error, including the lack of uniform standards of measurement and the legal and cultural disincentives to accurate reporting of error. Part I provides a brief background of the IOM report and addresses the …

Religious Freedom In Philadelphia, Philip A. Hamburger

Faculty Scholarship

Some controversies seem particularly significant for the development of constitutional rights. For the freedom from an establishment of religion, the most famous early debate occurred in Virginia in the mid-1780s. For the more immediate freedom of religion, however – the freedom from penalty or constraint on religion – the central historical debate is less familiar. It was in some respects merely a local quarrel, which embroiled Quakers and Revolutionaries in Philadelphia during a few tense weeks in 1775. Nonetheless, it was a revealing moment in the development of American religious liberty. At a time when Americans were struggling for equality …

Expanding Our Classroom Walls: Enhancing Teaching And Learning Through Technology, Kristin B. Gerdy, Jane H. Wise, Alison Craig

Faculty Scholarship

The authors examine the reasons why law faculty should implement technology into the legal education experience, provide a brief overview of the learning theory supporting technology, discuss the thoughtful use of technology, and describe four specific projects they have used in their classrooms to aid in student learning.

Religious Experience In The Age Of Digital Reproduction, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

A religious experience is an extraordinary event that occurs against the backdrop of ordinary life, infusing that life with a meaning it would not otherwise have. Mass culture is now replete with portrayals of such experiences. Spiritually-themed television shows, movies, books, music, and fashion are now common and even popular. This is not necessarily good news for religion and religious experience. What mass culture portrays as sacred may be merely an imitation, resembling more the ubiquitous feel-good self-affirmance of popular psychology than authentic communion with the divine.

On the other hand, the appropriation and portrayal of religious experience by mass …

The Permissible Scope Of Legal Limitations On The Freedom Of Religion Or Belief In The United States, Frederick Mark Gedicks

Faculty Scholarship

This article summarizes the law of legal limitations on religious freedom in the UnitedStates, including sources and hierarchies of applicable law, structural limitations on religious freedom, grounds for limiting such freedom, an analytical description oflimitations, and background influences on limitations law, and applies this law to hypothetical situations.

Federal judicial decisions interpreting the Religion Clauses are the principal source oflimitations law in the United States. RLUIPA and RFRA, federal anti-discrimination statutes, and executive orders are other important sources of religious freedom law. State constitutions, statutes, and regulations are important sources law when federal sources are absent or inapplicable. International human …

Eagle Feathers And Equality: Lessons On Religious Exceptions From The Native American Experience, Kevin J. Worthen

Faculty Scholarship

The legality and propriety of exempting religiously motivated conduct from otherwise applicable legal norms is the subject of ongoing scholarly, judicial, and legislative debate. The issue is particularly thorny when it arises in a legal system deeply committed to the concept of equality. The Eagle Protection Act, which exempts Native Americans religious practitioners who are members of federally recognized tribes from its general prohibition on the taking and use of bald and golden eagle feathers, provides an interesting context in which to examine that debate. Not only does the Act exempt religiously motivated conduct from the otherwise applicable norms, it …

Law And Letters: A Detailed Examination Of David Hoffman's Life And Career, Bill Sleeman

Faculty Scholarship

David Hoffman (1784-1854) has been cast as America's first legal ethicist and as the founder of one of the nation’s first original methods of legal instruction. While these interpretations of his life are certainly true, Hoffman’s life and career encompassed so much more than that. With few exceptions researchers have focused on Hoffman’s legal career and have left historians to wonder about his other pursuits. This article will review, in individual sections, the many facets of Hoffman's life and career in an effort to provide a more complete picture than has previously existed.

The Vocation Of International Arbitrators, Catherine A. Rogers

Faculty Scholarship

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Structure Of Regulatory Competition In European Corporate Law, The , Martin Gelter

Faculty Scholarship

In its opinions in the cases Centros, Uberseering and Inspire Art, the ECJ has begun to open European corporate law for regulaton of competition, as it has been discussed in the US for several ldecades. This article analyses the stuictual conditions of competition on the supply and demand sides of the market for corporate law, and the impact of supranational influence. In doing so, it identifies several factors that have received little attention in the incipient European debate. The supply-side analysis shows that a European Delaware is implausible because of the interdependence of competitive advantages and the incentives to compete. …

Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee

Faculty Scholarship

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court's decision, this Article discusses …

Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein

Faculty Scholarship

I am a law professor and a criminal defense lawyer, not a historian. It is with some trepidation that I stand before you to suggest that our very persistent regional sentencing variations have roots in the political struggles of Reformation England and the cultures of the subgroups that populated the first American colonies. I rely upon others for the historical proof, as you will see, but I think I do have standing to argue to you that we should consider whether or not there is room, even in federal sentencing, to account for deeply embedded regional variations in our basic …

Representing Children In Families, Bruce A. Green, Annette R. Appell

Faculty Scholarship

No abstract provided.

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Faculty Scholarship

I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for …

New Business Entities In Evolutionary Perspective, Henry Hansmann, Reiner Kraakman, Richard Squire

Faculty Scholarship

The new types of business forms that have developed over the past thirty years all combine the freedom of contracting that is traditional to the partnership with the pattern of creditors' rights that is traditional to the business corporation. Legal scholars differ on the issue of whether these new business forms are more partnership-like or corporation-like. Those taking the partnership-like view argue that the degree of freedom of contract is the essential difference between the traditional corporation and partnership forms, while those adhering to the corporation-like view argue that the pattern of creditors' rights is the essential difference. The authors …

Law And The Rise Of The Firm , Henry Hansmann, Reiner Kraakman, Richard Squire

Faculty Scholarship

Organizational law empowers firms to hold assets and enter contracts as entities that are legally distinct from their owners and managers. Legal scholars and economists have commented extensively on one form of this partitioning between firms and owners: namely, the rule of limited liability that insulates firm owners from business debts. But a less-noticed form of legal partitioning, which we call "entity shielding," is both economically and historically more significant than limited liability. While limited liability shields owners' personal assets from a firm's creditors, entity shielding protects firm assets from the owners' personal creditors (and from creditors of other business …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

Precautionary Regulation In Europe And The United States: A Quantitative Comparison, Jonathan B. Wiener, James K. Hammitt, Brendon Swedlow, Denise Kall, Zheng Zhou

Faculty Scholarship

Much attention has been addressed to the question of whether Europe or the United States adopts a more precautionary stance to the regulation of potential environmental, health, and safety risks. Some commentators suggest that Europe is more risk-averse and precautionary, whereas the US is seen as more risk-taking and optimistic about the prospects for new technology. Others suggest that the US is more precautionary because its regulatory process is more legalistic and adversarial, while Europe is more lax and corporatist in its regulations. The flip-flop hypothesis claims that the US was more precautionary than Europe in the 1970s and early …

Europe, America And The “Unity” Of International Law, Joost H. B. Pauwelyn

Faculty Scholarship

Is international law "Europeanized"? If so, what are the implications of such "Europeanization" for the unity and coherence of international law? This paper claims, first, that the application of international law by domestic courts in Europe does not threaten the unity of international law. There may be good reasons for domestic courts not to give effect to international law, based on democratic legitimacy, internal balance of powers or reciprocity with other nations. Yet, the risk of fragmentation or inconsistent interpretations is not one of them. Second, the definition and pursuit of a European agenda or European approach to international law …

Introductory Report On The World Trade Organization, Joost H. B. Pauwelyn

Faculty Scholarship

Presented at Palma Workshop, 20-21 May 2005, on Unity and Fragmentation in International Law.

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court radically altered Confrontation Clause analysis for the admission of hearsay statements. It created a very firm rule of actual confrontation for a narrowed class of covered hearsay, termed “testimonial statements,” and created only a limited number of exceptions. This new regime differed dramatically from the trustworthiness/reliability mode of analysis of Ohio v. Roberts (1980), which provided very wide but incredibly shallow protection against the admission of hearsay offered by the prosecution against the defendant. This article analyzes the basic teachings and uncertainties left in the wake of Crawford, sifting through …