Digital Commons Network^™

Toward A Federal Jurisprudence Of Trade Secret Law, Sharon Sandeen, Christopher B. Seaman

Faculty Scholarship

The May 2016 enactment of the Defend Trade Secrets Act of 2016 (DTSA), which created a new federal civil cause of action for trade secret misappropriation, raises a host of issues that federal courts will have to consider under their original subject matter jurisdiction, rather than applying state law through the courts’ diversity jurisdiction. This means that for the first time, an extensive body of federal jurisprudence will be developed to govern the civil protection and enforcement of trade secrets in the United States. In addition, due to the DTSA’s changes to the existing federal criminal law governing trade secrets, …

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Pope

Faculty Scholarship

How should we make medical decisions for incapacitated patients who have no available legally-authorized surrogate decision maker? Because these patients lack decision making capacity, they cannot authorize treatment themselves. Because they lack a surrogate, nobody else can authorize treatment either. Clinicians and researchers have referred to these individuals as “adult orphans” or as “unbefriended,” “isolated,” or “unrepresented” patients. Clinicians and researchers have also described them as “unimaginably helpless,” “highly vulnerable,” and as the “most vulnerable,” because “no one cares deeply if they live or die.”

The persistent challenges involved in obtaining consent for medical treatment on behalf of these individuals …

The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port

Faculty Scholarship

This article is an explication of the trend toward commodification of famous or putatively famous trademarks and the resultant urging that the FTDA be repealed. This article starts with a literature review showing that the vast majority of commentators have been severely critical of the FTDA. This has been ignored by Congress. The article next pursues Congress's blind support of the FTDA and suggests that more thought and analysis from Congress is still required. The article next explains the data regarding FTDA claims. All reported cases from 1996 through 2015 are coded and examined. The conclusion, looking at the data, …

Blurred Lines—Intersexuality And The Law: An Annotated Bibliography, Pat Newcombe

Faculty Scholarship

This Bibliography gathers, organizes, and annotates relevant law review articles (and one monograph) dealing with legal issues concerning intersexuality. Articles are included to introduce researchers to the intricacies involved in the discussion of intersexuality, to examine issues of medical interventions, and to explore possibilities of judicial relief within the existing framework.

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Faculty Scholarship

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Faculty Scholarship

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

The Rules Of Maternity, Dara Purvis

Faculty Scholarship

A diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more creates the rules of maternity. These rules are guidance provided both obliquely and explicitly by the law's coercive power telling women both how to and who should mother. Rule one begins in pregnancy, with the message that "your body is your child's vessel." During pregnancy, women are counselled that doctor knows best. After the child's birth, the mother remains responsible for the people who enter a child's life, leading to rule 3: "mothers must always protect." …

Money Norms, Julia Y. Lee

Faculty Scholarship

Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists, …

Contracting Out Of The Fiduciary Duty Of Loyalty: An Empirical Analysis Of Corporate Opportunity Waivers, Gabriel Rauterberg, Eric L. Talley

Faculty Scholarship

For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few “mandatory” rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the duty of loyalty: the corporate opportunities doctrine. Other states have since followed Delaware’s lead, similarly permitting firms to execute “corporate opportunity waivers.” Surprisingly, more than fifteen years into this reform experiment, no study has attempted to either systematically measure the corporate response to these reforms or …

Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman

Faculty Scholarship

On September 7, 2016, four of the nation’s newspapers of record weighed in on the connected crises in crime and policing. The New York Times revealed the tensions between the Mayor’s office in Chicago and several community and professional groups over a plan to overhaul Chicago’s police disciplinary board – a plan developed in the wake of the shooting of an unarmed teenager, Laquan McDonald, and the release of a video of that killing. The Wall Street Journal related a vigorous defense of New York City’s “broken windows” policing strategy – a strategy that has been a recurring source of …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Fracking Health Care: How To Safely De-Medicalize America And Recover Trapped Value For Its People, William M. Sage

Faculty Scholarship

The wealth trapped within American health care is simultaneously a tragedy and a miracle. It is a tragedy because stagnating wages, widening disparities in income, ballooning deficits, and stunted investments in education and social services make such medical profligacy shameful. It is a miracle because it still exists, whereas other U.S. economic resources of similar magnitude have already been dissipated by global market forces without addressing any of the aforementioned failings – indeed, sometimes having contributed to them. It therefore can be released and used.

It is time to “frack the health care system” and innovate the de-medicalization of America. …

Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary

Faculty Scholarship

We review economics research regarding the effect of police, punishments, and work on crime, with a particular focus on papers from the last twenty years. Evidence in favor of deterrence effects is mixed. While there is considerable evidence that crime is responsive to police and to the existence of attractive legitimate labor-market opportunities, there is far less evidence that crime responds to the severity of criminal sanctions. We discuss fruitful directions for future work and implications for public policy.

Race Liberalism And The Deradicalization Of Racial Reform, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

Investor-Driven Financial Innovation, Kathryn Judge

Faculty Scholarship

Financial regulations often encourage or require market participants to hold particular types of financial assets. One unintended consequence of this form of regulation is that it can spur innovation to increase the effective supply of favored assets. This Article examines when and how changes in the law prompt the spread of “investor-driven financial innovations.” Weaving together theory, recent empirical findings, and illustrations, this Article provides an overview of why investors prefer certain types of financial assets to others, how markets respond, and how the spread of investor-driven innovations can transform the structure of the financial system. This examination suggests that …

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma

Faculty Scholarship

Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.

To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy — marketization, managerialism, or professionalism/craft — and that …

In Re Akhbar Beirut & Al Amin, Monica Hakimi

Faculty Scholarship

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal’s proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri.1 The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist’s freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.

Trademarks And Unfair Competition, Clarisa Long

Faculty Scholarship

Chapter 9 summarizes the dominant law and economic approach to some of the doctrines comprising the two major strands of modern trademark law: classic trademark law, in which trademark protection is justified as reducing consumer search costs and preventing consumer confusion; and dilution law, which is explained by the more traditional intellectual property justifications of encouraging investment in creating valuable marks and protecting producer goodwill. It argues that the culmination of trademark law in the form of protection against dilution represents completion of a full circle of development of unfair competition law. From its start as a means of protecting …

The Role Of The Author In Copyright, Jane C. Ginsburg

Faculty Scholarship

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue …

The Deregulation Of Private Capital And The Decline Of The Public Company, Elisabeth De Fontenay

Faculty Scholarship

From its inception, the federal securities law regime created and enforced a major divide between public and private capital raising. Firms that chose to “go public” took on substantial disclosure burdens, but in exchange were given the exclusive right to raise capital from the general public. Over time, however, the disclosure quid pro quo has been subverted: Public companies are still asked to disclose, yet capital is flooding into private companies with regulators’ blessing.

This Article provides a critique of the new public-private divide centered on its information effects. While regulators may have hoped for both the private and public …

The Limits Of “Limitations And Exceptions” In Copyright Law, Jerome H. Reichman

Faculty Scholarship

The “designated exceptions” approach in the European Union and elsewhere becomes obsolete when faced with the needs of digital science to scrutinize and analyze all relevant research results pertinent to any scientific inquiry. Even the fair use exception rooted in U.S. law, while more agile on a case by case approach, is challenged by the scientific communities’ need to reproduce and analyze all available material relevant to any given research project and by the ability of automated knowledge discovery tools to do just that. A more promising model for reform is the “some rights reserved” concept of private ordering that …

Would You Kindly?: Considering Video Game Collections In Academic Libraries, Janelle Zetty

Faculty Scholarship

No abstract provided.

The President's Private Dictionary: How Secret Definitions Undermine Domestic And Transnational Efforts At Executive Branch Accountability, Sudha Setty

Faculty Scholarship

The 2016 EU-U.S. Privacy Shield is an agreement allowing companies to move customer data between the European Union and the United States without running afoul of heightened privacy protections in the European Union. It was developed in response to EU concerns that the privacy rights of its citizens have been systematically abrogated by the U.S. government in the name of national security, and contains a variety of assurances that the United States will respect and protect the privacy rights of EU citizens.

How trustworthy are the U.S. assurances under the Privacy Shield? Both the Bush and Obama administrations secretly interpreted …

Samuel Alito: Populist, William Araiza

Faculty Scholarship

No abstract provided.

Recasting Vagueness: The Case Of Teen Sex Statutes, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Refugees And The Primacy Of European Human Rights Law, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Consumer Bankruptcy Pathologies, Edward R. Morrison, Antoine Uettwiller

Faculty Scholarship

This paper questions several long-standing descriptions of consumer bankruptcy in the United States. We focus on Chapter 13, which discharges debts after consumers pay disposable income to creditors for up to five years. Many studies document pathologies, including high failure rates, racial disparities, low creditor recoveries, and attorney biases. We observe the same patterns in new data drawn from Cook County, Illinois, but show that these pathologies are central tendencies that ignore substantial heterogeneity across consumers. Several pathologies are driven by subsets of consumers; some disappear once we take account of consumer heterogeneity. We present new evidence that some pathologies …

Stanley V. Illinois'S Untold Story, Joshua Gupta-Kagan

Faculty Scholarship

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this …

Nonsense You Say, Nicholas W. Allard

Faculty Scholarship

No abstract provided.