Digital Commons Network^™

Five Steps To Successfully Developing A Law Practice Technology Course, Femi Cadmus

Faculty Scholarship

No abstract provided.

An Exploration Of “Non-Economic” Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Faculty Scholarship

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Payroll Taxes, Mythology And Fairness, Linda Sugin

Faculty Scholarship

As the 2012 fiscal cliff approached, Congress and President Obama bickered over the top marginal income tax rate that would apply to a tiny sliver of the population, while allowing payroll taxes to quietly rise for all working Americans. Though most Americans pay more payroll tax than income tax, academic and public debates rarely mention it. The combined effect of the payroll tax and the income tax produce dramatically heavier tax liabilities on labor compared to capital, producing substantial horizontal and vertical inequity in the tax system. This article argues that a fair tax system demands just overall burdens, and …

Breaking Up Payday: Anti-Agglomeration Zoning & Consumer Welfare, Sheila R. Foster

Faculty Scholarship

In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday …

Are Damages Different? Bivens And National Security, Andrew Kent

Faculty Scholarship

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

Privacy In Public, Joel R. Reidenberg

Faculty Scholarship

As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development …

Encouraging Engaged Scholarship: Perspectives From An Associate Dean For Research, Sonia K. Katyal

Faculty Scholarship

No abstract provided.

Mortgage Modification And Strategic Behavior: Evidence From A Legal Settlement With Countrywide, Christopher Mayer, Edward R. Morrison, Tomasz Piskorski, Arpit Gupta

Faculty Scholarship

We investigate whether homeowners respond strategically to news of mortgage modification programs. We exploit plausibly exogenous variation in modification policy induced by settlement of U.S. state government lawsuits against Countrywide Financial Corporation, which agreed to offer modifications to seriously delinquent borrowers. Using a difference-in-difference framework, we find that Countrywide's monthly delinquency rate increased more than 0.54 percentage points – ten percent relative increase – immediately after the settlement's announcement. The estimated increase in default rates is largest among borrowers least likely to default otherwise. These results suggest that strategic behavior should be an important consideration in designing mortgage modification programs.

Policing Terrorists In The Community, Sahar F. Aziz

Faculty Scholarship

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to stop terrorism before it occurs. Towards that end, community policing, developed in the 1990s to combat violent crime in inner city communities, is being adopted as a means of collaborating with Muslim communities and local police to combat "Islamist homegrown terrorism." Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among local law enforcement and the …

Moving Money: International Financial Flows, Taxes, And Money Laundering, Richard Gordon, Andrew P. Morriss

Faculty Scholarship

Allegations by political leaders and others that offshore financial centers enable multinational enterprise to avoid paying a “fair” amount of tax — and that they enable wealthy individuals to evade paying any tax, much of it on ill gotten gains — are once again garnering headlines and inspiring government action. One of the most prominent commentators on these topics, The Tax Justice Network, has recently claimed that thanks to the services of tax havens $21-$32 trillion of wealth of questionable origin remains hidden and untaxed, and that such abuse must be stopped through greater regulation. In this paper we argue …

Intellectual Property Geographies, Peter K. Yu

Faculty Scholarship

Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography …

Saving The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

In a recent, attention-grabbing speech, the Chief Judge of the Seventh Circuit, Diane Wood, argued that Congress should abolish the Federal Circuit’s exclusive jurisdiction over patent cases. Exclusive jurisdiction, she said, provides too much legal uniformity, which harms the patent system. In this response to Judge Wood’s thoughtful speech, I seek to highlight two important premises underlying her argument, neither of which is indisputably true.

The first premise is that the Federal Circuit actually provides legal uniformity. Judge Wood suggests that, due to the Federal Circuit’s exclusive jurisdiction, patent doctrine is insufficiently “percolated,” meaning that it lacks mechanisms through which …

Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz

Faculty Scholarship

In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.

We Need To Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage And A Principled Reading Of The "Transmit" Clause, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo’s …

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

Article 41 And The Right To Appeal, Benjamin L. Liebman

Faculty Scholarship

Extensive discussion of the Chinese Constitution focuses on the ways in which the Constitution is under-enforced or not implemented. This essay takes a different approach, examining one clause that is arguably at times over-enforced, providing for constitutional authorization for challenging legal determinations outside the legal system. This essay’s focus is Article 41 of the 1982 Constitution, which protects the rights of citizens to file complaints (shensu 申诉) against illegal conduct of state actors. My goal in this essay is to examine the ways in which the concept of shensu is used to provide a basis for challenges to state action …

An Introduction To The Law & Economics Of Information, Tim Wu

Faculty Scholarship

This paper reviews the literature related to the properties of information and legal implications of same, making three observations:

First, scholars have extended a public good model of information to an ever-increasing number of fields where law and information intersect. An incomplete list includes intellectual property, securities regulation, contract theory, consumer protection, communications, and the study of free speech.

Second, scholars have sharply questioned whether, in practice, information actually has the characteristics of a public good. In particular, the claim that information is intrinsically impossible to exclude non-payers from has no clear basis, a fact that potentially undermines theoretical support …

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …

The Case For An Unbiased Takeover Law (With An Application To The European Union), Luca Enriques, Ronald J. Gilson, Alessio M. Pacces

Faculty Scholarship

Takeover regulation should neither hamper nor promote takeovers, but instead allow individual companies to decide the contestability of their control. Based on this premise, we advocate a takeover law exclusively made of default and menu rules supporting an effective choice of the takeover regime at the company level. For political economy reasons, we argue that different default rules should apply to newly public companies and companies that are already public when the new regime is introduced. Newly public companies should be governed by default rules that favor the interests of (minority) shareholders over those of management and controlling shareholders, because …

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …

Solving The Cso Conundrum: Green Infrastructure And The Unfulfilled Promise Of Federal-Municipal Cooperation, Casswell F. Holloway, Carter H. Strickland Jr., Michael B. Gerrard, Daniel M. Firger

Faculty Scholarship

Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative "green infrastructure" mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional "grey infrastructure" features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial …

Legal Reform: China's Law-Stability Paradox, Benjamin L. Liebman

Faculty Scholarship

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did China’s leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from China’s rapid social transformation. This signi½es a retreat not only from legal reform, but also from the rule-based model of authoritarian …

Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg

Faculty Scholarship

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore "free" in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair …

How To Improve The Financial Architecture And Its Resilience, Dirk Helbing, Eve Mitleton-Kelly, Jean-Philippe Bouchaud, Fabio Caccioli, J. Doyne Farmer, Steve Keen, Katharina Pistor, Dennis J. Snower, Olsen Richard, Angelo Ranaldo, Norbert Häring, Edward Fullbrook

Faculty Scholarship

This financial resilience survey was circulated on behalf of a working group of the Complexity Council of the World Economic Forum comprised of Prof. Eve Mitleton-Kelly of London School of Economics and Prof. Dirk Helbing at ETH Zurich's Risk Center. It was sent to a few dozens of financial experts with the aim to create an inventory of ideas of how the financial system might be improved and made more resilient. Unconventional ideas were also welcome.

Future War, Future Law, Eric Talbot Jensen

Faculty Scholarship

Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the …

Testing Pathways Linking Exposure To Community Violence And Sexual Behaviors Among African American Youth, Dexter R. Voisin

Faculty Scholarship

Exposure to community violence and HIV sexual risks are two major public health concerns among youth. This study tests various pathways linking exposure to community violence and sexual behaviors among African American adolescents. Using a sample of 563 (61 % females) African American youth attending high school we examined whether problematic psychological symptoms, low school engagement, and/or negative perceptions of peer norms about safer sex functioned as pathways linking exposure to community violence and sexual behaviors. Major findings indicated that, for boys, the relationship between exposure to community violence and sexual début and sexual risk behaviors were linked by aggression. …

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Scholarship

No abstract provided.

Parody As Brand, Stacey Dogan, Mark Lemley

Faculty Scholarship

Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …