Digital Commons Network^™

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 …

The Role Of Prosecutorial Discretion In Immigration Law, Shoba S. Wadhia

Faculty Scholarship

The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the …

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Faculty Scholarship

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly. This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a vast body of scholarly work …

Gina's Genotypes, David H. Kaye

Faculty Scholarship

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA generally prohibits employers from asking for "genetic information." The faculty senate and outside commentators have declared that the Akron policy is "of doubtful legality" because it "appears to …

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman

Faculty Scholarship

At this moment in history, tort reform and new approaches to resolving medical malpractice claims are part of the national debate about how to improve health care. Federal funding is available for pilot projects to test new approaches to medical malpractice litigation. There is increased pressure from health care regulators to disclose adverse events and communicate better with patients and their families. These all present opportunities to increase the use of mediation, particularly to address medical malpractice lawsuits and to improve patient safety.

For the past seven years, we have been studying ways in which mediation and mediation skills can …

The Future Scholars Program: Preparing Future Scholars For Rutgers & Readying Rutgers For Future Scholars, Katie Poynter, Susan P. Sturm

Faculty Scholarship

The Center for Institutional and Social Change at Columbia Law School identified the Rutgers Future Scholars program as a new and innovative approach to advancing the participation and success of low-income, minority students in higher education. Rutgers University established the Future Scholars program with the goal of ― reaching minority and low-income students who might otherwise never consider college within their grasp."1 Future Scholars targets promising middle school students from the urban communities surrounding its three main campuses of Newark, Camden, and New Brunswick/Piscataway. These communities face challenges of social marginalization and poverty. Despite their proximity to the Rutgers campuses, …

Familial Norms And Normality, Clare Huntington

Faculty Scholarship

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is …

Climate Change And The Wto: Legal Issues Concerning Border Tax Adjustments, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Climate change is a multi-faceted discussion: for the trading community, one of many contentious issues in the policy debate over how to deal with greenhouse gas (GHG) emissions is the appropriate role of Border Carbon Adjustments (BCAs)/Border Tax Adjustments (BTAs). The role of BCAs has been analyzed in a very large policy discussion literature, as well as in a significant number of academic writings in both law and economics. One can safely summarize the state of each of these literatures as bewildering: in the legal literature there is still no consensus as to whether such measures are legal under the …

Election Campaigns And Democracy: A Review Of James A. Gardner, What Are Campaigns For? The Role Of Persuasion In Electoral Law And Politics, Richard Briffault

Faculty Scholarship

What are election campaigns for? Not much, according to Professor James A. Gardner – or, at least, not nearly as much as the critics of American election campaigns would have us believe. In his new book, What Are Campaigns For? The Role of Persuasion in Electoral Law and Politics, Professor Gardner contends that instead of serving as settings for extended discussion or in depth reflection concerning political beliefs, the ideal election campaign does little more than make it more likely that the voter will cast a ballot consistent with the beliefs that he or she held before the start …

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard

Faculty Scholarship

When Jonathan Cannon, Michael Vandenbergh, and I started planning this conference last summer, we planned to call it “Implementing Climate Change Legislation.” We assumed that by today a new law aimed at addressing climate change would be in place, or at least would be in the final polishing stage, in the United States. We even imagined that the federal agencies would be rolling up their sleeves to implement not only the new U.S. climate law but also our part of the comprehensive climate pact that the nations of the world had agreed to in Copenhagen.

Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard

Faculty Scholarship

In 2009, the residential and commercial building sector was responsible for more than 50 percent of total annual U.S. energy consumption, 74 percent of total U.S. electricity consumption, and 39 percent of total U.S. greenhouse gas emissions.

There has been a growing movement to encourage “green buildings” – those that generally use water, energy and materials more efficiently than conventional buildings, and utilize design, construction and siting features to reduce their negative environmental impacts.

Model Green Building Ordinance Proposed For Adoption By New York Municipalities, Michael B. Gerrard, Jason James

Faculty Scholarship

After failing to pass in the 111th Congress, comprehensive federal climate legislation appears stalled until at least 2013. Regulation of greenhouse gas emissions under existing federal law, while progressing, has encountered challenges. Even state initiatives, such as California's A.B. 32, lie on less than certain ground. But not all action to reduce greenhouse gas emissions must be taken on the federal or state level. Through regulating buildings, municipalities can play a crucial role in reducing greenhouse gas emissions while improving the health and welfare of their local communities.

In 2009, the residential and commercial building sector was responsible for more …

Energy Policy For An Economic Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

A compelling case can be made for reducing America's consumption of petroleum fuels. Nearly all analysts think that the way to slash consumption of petroleum fuels is through an end-user tax. There is, however, widespread public opposition to higher gasoline taxes. Furthermore, in a recession the appropriate fiscal policy is to cut taxes, not to raise them. This paper proposes a method of stabilizing petroleum fuel prices at a sufficiently high level, without reducing aggregate consumer purchasing power. We introduce a revenue-neutral petroleum fuel price stabilization plan, called the "PFPS" plan for short Under this plan, a government surcharge on …

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

Faculty Scholarship

This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …

In Celebration Of Steven Shiffrin's The Religious Left And Church-State Relations, Kent Greenawalt

Faculty Scholarship

Steven Shiffrin's The Religious Left and Church-State Relations is a truly remarkable book in many respects. I shall briefly note a few of its striking features, including some illustrative passages, and outline a number of its central themes, before tackling what for me is its most challenging and perplexing set of theses – the relations between constitutional and political discourse, and between religious liberals, on the one hand, and religious conservatives and secular liberals on the other.

We might well think of this as two books in one: a book about the constitutional law of free exercise and non-establishment, and …

Individualized Service Provision In The New Welfare State: Lessons From Special Education In Finland, Charles F. Sabel, Annalee Saxenian, Reijo Miettinen, Peer Hull Kristensen, Jarkko Hautamäki

Faculty Scholarship

The essay is four parts. Part 2 sets out the theoretical frame of the argument. It explains briefly why social solidarity increasingly depends on the provision of capacitating or enabling circumstances; why those services must increasingly be adapted to individual needs to be effective; and what is organizationally problematic (from the point of view of current theories of organization) about the success of countries such as Finland, Denmark and the US in delivering these services. It sketches two paths — a Nordic way, building on traditional professions, and a roundabout, US way, re-building broken bureaucracies originally intended as substitutes for …

If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Faculty Scholarship

This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.

The Rule Of Law Unplugged, Daniel B. Rodriguez, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

The "Rule of Law" is a venerable concept, but, on closer inspection, it is a complex admixture of positive assumptions, inchoate political and legal theory, and occasionally wishful thinking. Although enormous investments have been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries are often unclear about what they are transplanting and why they are doing so. The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to …

Making Mountains Of Debt Out Of Molehills: The Pro-Cyclical Implications Of Tax And Expenditure Limitations, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

This paper presents evidence that property tax limits have detrimental effects on state and local revenues during recessions. Property tax limits cause states to rely on income–elastic revenue sources, such as the income tax or charges and fees. Greater reliance on these revenue sources results in greater revenue declines during economic downturns. We present analysis of time–series, cross–sectional data for the U.S. states for each of these conclusions. Our results suggest that states would have fewer and more modest financial problems during economic downturns if they did not enact property tax limitations.

Welfare As Happiness, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

No abstract provided.

Did Secession Really Die At Appomattox?: The Strange Case Of U.S. V. Jefferson Davis, Cynthia Nicoletti

Faculty Scholarship

No abstract provided.

Price And Pretense In The Baby Market, Kimberly D. Krawiec

Faculty Scholarship

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against “baby selling” – typically defined as a prohibition against the …

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi

Faculty Scholarship

In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such …

Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen

Faculty Scholarship

This paper tests a model in which group identity in the form of religious intensity functions as ex post insurance. I exploit relative price shocks induced by the Indonesian financial crisis to demonstrate a causal relationship between economic distress and religious intensity (Koran study and Islamic school attendance) that is weaker for other forms of group identity. Consistent with ex post insurance, credit availability reduces the effect of economic distress on religious intensity, religious intensity alleviates credit constraints, and religious institutions smooth consumption shocks across households and within households, particularly for those who were less religious before the crisis.

Strategic Enforcement, Margaret H. Lemos, Alex Stein

Faculty Scholarship

No abstract provided.

Responsible Sovereign Lending And Borrowing, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

There are three reasons for attempting to reach a common understanding of the responsibilities of sovereign borrowers and their lenders. First, the flow of capital to sovereign debtors is exceptionally important to the world economy. Industrialized countries rely on it to finance their budget deficits, these days to a breathtaking extent. Developing countries need it to develop. Misbehaviour, either by the sovereign debtors or by the creditors, destabilizes this key component of the international financial system, making credit less available and more costly.

Second, sovereign finance is uniquely unforgiving of mistakes. Unlike corporate or personal debtors, sovereigns do not have …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …