Digital Commons Network^™

Together We Can: Imagining The Future Of Employee Pensions, Maria O'Brien

Faculty Scholarship

Reviewing Teresa Ghilarducci & Christian E. Weller, Eds. Employee Pensions: Policies, Problems & Possibilities (LERA 2007)

A little over thirty years ago Congress enacted the Employee Retirement Income Security Act (ERISA),¹ a comprehensive reform of the existing system of pension regulation.² Solidly into its fourth decade, ERISA has been the object of much commentary as the various federal courts have struggled to infuse its complicated and sometimes imprecise pieces with coherent meaning. ³ Some have suggested that ERISA's primary goal of reducing the risk to employees of employer default has largely been achieved.⁴ Others believe that almost …

Do Patents Perform Like Property?, Michael J. Meurer, James Bessen

Faculty Scholarship

Do patents provide critical incentives to encourage investment in innovation? Or, instead, do patents impose legal risks and burdens on innovators that discourage innovation, as some critics now claim? This paper reviews empirical economic evidence on how well patents perform as a property system.

The Legacy Of The Nuremberg Doctors' Trial To American Bioethics And Human Rights, George J. Annas

Faculty Scholarship

In this lecture I argue that modern bioethics was born at the Nuremberg Doctors' Trial, a health law trial that produced one of the first major human rights documents: the Nuremberg Code. Accepting this conclusion has significant consequences for contemporary American bioethics generally, and specifically in the context of our continuing global war on terror in which the United States uses physicians to help in interrogations, torture, and force-feeding hunger strikers.

The primary force shaping the agenda, development, and current state of American bioethics has not been either medicine or philosophy, but law, best described as health law. Like bioethics, …

Health Care Reform In America: Beyond Ideology, George J. Annas

Faculty Scholarship

The inspiration for the following keynote address was drawn from an article authored by Professor Annas in 1995 which appeared in the New England Journal of Medicine.² In that article, Professor Annas sought to explain the Clinton healthcare plan's failure by analyzing the power and importance of the healthcare reform metaphors used in promoting the plan. In his remarks here, Professor Annas extends his analysis of healthcare related metaphors to those common in current healthcare reform parlance, theorizing that current efforts at healthcare reform have been unsuccessful, in part, because the metaphors used fail to frame the issues involved …

Dirty Dancing: The Fda Stumbles On The Chevron Two-Step, Gary S. Lawson

Faculty Scholarship

Professor Lars Noah deserves much credit for exposing some of the myriad ways in which the Food and Drug Administration (FDA) has consistently sought to expand its authority through questionable, and perhaps in some cases abusive, legal practices.' As Professor Noah observes, there are signs that the federal courts' century-long honeymoon with the FDA may be ending 2 -and perhaps the FDA never deserved the solicitude that it has traditionally received from both the judiciary and Congress. 3 If Professor Noah can hasten the onset of a more realistic legal and public attitude toward the FDA, he will have performed …

Physicians And Execution: Highlights From A Discussion Of Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Problem Of Equality In Takings, The , Nestor M. Davidson

Faculty Scholarship

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …

The Empirics Of Prison Growth: A Critical Review And Path Forward, John F. Pfaff

Faculty Scholarship

A growing empirical literature has sought to explain the forces behind the significant expansion of the U.S. prison population over the past thirty years. Unfortunately, the studies to date have suffered from important methodological, conceptual, and definitional problems that have significantly curtailed their ability to identify causal effects. In this Article, I examine several of the central limitations and discuss remedies. I start by reviewing the theories that investigators have sought to test. I then discuss the studies' empirical defects, such as failing to account for endogenous relationships, overlooking the risk of model dependency, ignoring complex dynamic relationships, using variables …

Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment: Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

Faculty Scholarship

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …

"Think Glocal, Act Glocal": The Praxis Of Social Justice Lawyering In The Global Era, Lauren Carasik

Faculty Scholarship

Millions of people in the world struggle to survive in extreme economic deprivation, and deteriorating conditions have highlighted the failure of international development policies to "lift all boats." The complex and globalized context of poverty compels social justice lawyers to innovate transnational advocacy strategies, expanding human rights norms as part of those efforts. This Article suggests a cross-border, collaborative advocacy model for clinical education. The model is premised on theories of global interconnectedness that integrate progressive lawyering, social change theory and anti-poverty work in the global era, thereby contributing to the discourse about and praxis of combating international economic injustice. …

Book Review: Elizabeth Wicks' Human Rights And Healthcare, Barbara A. Noah

Faculty Scholarship

The Author reviews the book Human Rights and Healthcare, by Elizabeth Wicks and published by Hart Publishing, 2007. Although the book focuses mainly on rights within the United Kingdom, those familiar with healthcare and bioethics issues within the United States or elsewhere will find it an extremely useful comparative resource.

Taxation Without Liquidation: Rethinking "Ability To Pay", Sergio Pareja

Faculty Scholarship

This Article proposes a novel way to tax wealth transfers. Specifically, it suggests that we divide all assets transferred by gift or bequest into two classes--illiquid assets and liquid assets. The recipient should include those assets in income but be allowed two options. With respect to illiquid assets, the recipient should be able to avoid immediate income inclusion if he takes the property with an income-tax basis of zero. With respect to liquid assets, the recipient should be allowed a full income-tax deduction if he rolls the gift or bequest into a deductible IRA. The combination of these simple rules …

The Legacy Of Bryan V. Itasca County: How An Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion In Indian Gaming Revenue, Kevin Washburn

Faculty Scholarship

This Article places Bryan v. Itasca County in historical context and gives credit where credit is due. From the perspective of three decades, it describes the litigation and its ramifications, and highlights the work of the legal services attorneys who brought Indian tribes this landmark victory. Part I briefly describes the litigation through the state supreme court. Part II discusses, in much greater detail, the appeal to the U.S. Supreme Court. Part III analyzes the unanimous Supreme Court opinion reversing the state courts and describes the breathtaking scope of the opinion, as well as its implications. Part IV briefly describes …

Symposium: Issues In Estate Planning For Same-Sex And Transgender Couples: Foreword, Jennifer L. Levi

Faculty Scholarship

Despite the sea of change in possibilities for creating lawful relationships for many gay, lesbian, bisexual, and transgender individuals, most jurisdictions do not allow them to marry or enter into any comparable legal status. The vast majority of states either by statute or state constitutional amendment actually prohibit marriage for same-sex couples. And, even when couples can marry or enter into a comparable legal status, they are faced with uncertainty regarding what effect, if any, will be accorded to that status should they travel or move. Given the legal challenges that same-sex couples face, the need for high-quality estate planning …

Retributive Justice, Restorative Justice, And Forgiveness: An Experimental Psychophysiology Analysis, Charlotte Witvliet, Everett L. Worthington, Lindsey M. Root, Amy F. Sato, Thomas E. Ludwig, Julie J. Exline

Faculty Scholarship

This experiment assessed the emotional self-reports and physiology of justice outcomes and forgiveness responses to a common crime, using a three Justice (retributive, restorative, no justice) × 2 Forgiveness (forgiveness, none) repeated-measures design. Participants (27 males, 29 females) imagined their residence was burglarized, followed by six counterbalanced justice–forgiveness outcomes. Imagery of justice—especially restorative—and forgiveness each reduced unforgiving motivations and negative emotion (anger, fear), and increased prosocial and positive emotion (empathy, gratitude). Imagery of granting forgiveness (versus not) was associated with less heart rate reactivity and better recovery; less negative emotion expression at the brow (corrugator EMG); and less aroused …

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

A House Still Divided, Clare Huntington

Faculty Scholarship

In response to Adam B. Cox, Immigration Law's Organizing Principles, 157 U. PA. L. REv. 341 (2008).

Adam Cox's Immigration Law's Organizing Principles contests the traditional view that immigration law and alienage law – in his terms, "selection rules" and "regulation rules" – are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox's argument, I am not convinced that it will destabilize the …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants, and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Parents As Hubs, Clare Huntington

Faculty Scholarship

In her provocative article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, Professor Melissa Murray offers a much-needed corrective to the view that families are “autonomous islands” and argues that the law should recognize the networks of care provided by nonparental caregivers.I wholeheartedly agree with Professor Murray that the law should support families in providing care. I am also deeply sympathetic to the claim that family law is overly reliant on binary opposites — here, the mutually exclusive categories of parent and legal stranger — that do not capture the complex reality of family life. And …

The Melting Of Patent Law, Eben Moglen

Faculty Scholarship

In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge.

Unsafe At Any Price, Ronald J. Mann

Faculty Scholarship

Making Credit Safer is a fascinating collaboration between two scholars of very different bents. Elizabeth Warren's career rests oil decades of careful empirical research, integrated into trenchant policy analysis, and deeply informed by the cultural and social significance of debt. Oren Bar-Gill, by contrast, is a formally trained economist, who is at the start of his academic career, and has gained wide recognition for his successful application of theories of behavioral economics to the products that dominate the modern credit card industry.

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Legitmacy And Criminal Justice, Jeffrey A. Fagan

Faculty Scholarship

Surveys of public opinion over four decades consistently show that Americans have little confidence in the fairness or effectiveness of the criminal justice system and criminal law more generally. This crisis of confidence is most acute among racial minorities: surveys show that more than one in three Whites have little confidence in the police, compared to more than half of Black respondents. Both the lack of confidence and the racial breach in perceptions of the law and legal actors have persisted for nearly four decades, regardless of whether crime was rising or falling.

But we might reasonably ask whether and …

The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and …

Preemption And Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the …

Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman

Faculty Scholarship

Jose Canseco's use of steroids, the sale of used girls' underwear in Japan, penile mutilation, and the moral failings of both Bill Clinton and former Japanese Prime Minister Sosuke Uno are not topics that often appear side by side, much less in a scholarly work of comparative law. And few law professors have the chance to publish a book whose jacket features a picture of a scantily clad woman. In Secrets, Sex and Spectacle, Mark West does both. He also does much more, unraveling the interplay of social and legal rules that influence the formation of scandal and spectacle …

The Irony Of Judicial Elections, David E. Pozen

Faculty Scholarship

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Experimental Law And Economics, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

This chapter provides a framework for assessing the contributions of experiments in Law and Economics. We identify criteria for determining the validity of an experiment and find that these criteria depend upon both the purpose of the experiment and the theory of behavior implicated by the experiment. While all experiments must satisfy the standard experimental desiderata of control, falsifiability of theory, internal consistency, external consistency and replicability, the question of whether an experiment also must be contextually attentive - in the sense of matching the real world choice being studied - depends on the underlying theory of decision-making being tested …