Digital Commons Network^™

A Truly Good Work: Turning To Restorative Justice For Answers To The Welfare-To-Work Dilemma, Marie Failinger

Faculty Scholarship

U.S. welfare programs have traditionally come with strings attached: recipients must work for their benefits. I argue that there is a more practical and less morally repugnant way to marry work and welfare if proponents of work as well as their opponents would be willing to give up the unrealistic expectations they have placed on state-run public assistance programs, and define a clear and limited relationship between work and need for economically vulnerable people. Just as it has offered an alternative to both the pure retributivist and rehabilitation models in the area of criminal corrections, the principles and practices of …

Identifying And Keeping The Genie In The Bottle: The Practical And Legal Realities Of Trade Secrets In Bankruptcy Proceedings, Sharon Sandeen

Faculty Scholarship

Anyone who has been paid attention to developments in the world of business over the past quarter century can attest to the fact that intellectual property (IP) is a hot commodity. Indeed, in contrast to the companies that emerged out of the Industrial Revolution, the companies that have spawned as part of the so-called “Information Age” attribute much of their value and future prospects to intangible, rather than tangible, assets. Unfortunately, while bankruptcy courts have generally recognized the need to distinguish between tangible and intangible assets, particularly when determining whether a claim is secured or unsecured, they often fail to …

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean O'Connor

Faculty Scholarship

No abstract provided.

Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale

Faculty Scholarship

No abstract provided.

Family Life, The Politics Of The Family, And Social Transformation, Linda C. Mcclain

Faculty Scholarship

Why do families matter? Is it simply because of their role in social reproduction, or does this ignore the personal goods, the benefits and burdens, of intimate life? Does an emphasis on the formative role of families risk treating them merely as serving the state and divert attention from the rights of persons to form families and the rights - and needs - of children to nurturing relationships? What kind of social and economic transformation would be necessary to implement a normative vision of family that supports families, is egalitarian, and respects diversity? What is the best way to rectify …

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.

Market-Based Licensing For Hpv Vaccines In Developing Countries, Kevin Outterson, Aaron S. Kesselheim

Faculty Scholarship

Human papillomavirus (HPV) vaccines hold great promise for preventing cervical cancer, but 93 percent of mortality worldwide occurs in low- and middle-income countries, where high vaccine costs can restrict dissemination. Current models for promoting international access to health care innovations include differential pricing, advance market commitments, and voluntary and compulsory licensing. Some of these mechanisms have been effective, but much room for improvement remains. We discuss the usefulness of a new type of license that uses market forces to lower prices through generic competition in low- and middle-income countries while ensuring that pharmaceutical companies are appropriately reimbursed for their research …

Open Code Governance, Danielle K. Citron

Faculty Scholarship

Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person's eligibility for public benefits. Computer systems store sensitive personal information. These systems' closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program's source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

Inventors, Entrepreneurs, And Intellectual Property Law, Michael J. Meurer

Faculty Scholarship

I am not sure why small business concerns have not had more influence on IP law. Perhaps the sentiment prevailing in antitrust law spilled over into IP law. American antitrust law has reached a near consensus that small firms get no special treatment under a law designed to protect competition, not competitors. ° In contrast, European competition law regulators are more likely to protect small business, and European patent policymakers openly fret about how to reform their patent law to promote small business.²

Regardless, my concern in this Article is mostly with the normative question: Should IP law favor …

Doctrines Without Borders: The New Israeli Exclusionary Rule And The Challenges Of Legal Transplantation, Binyamin Blum

Faculty Scholarship

No abstract provided.

Massachusetts V Epa: Escaping The Common Law's Growing Shadow, Robert V. Percival

Faculty Scholarship

In its first full Term with its newest member, the U.S. Supreme Court marched decidedly to the right with decisions narrowing abortion rights, striking down affirmative action programs, invalidating campaign finance regulations, and making it more difficult for victims of employment discrimination to seek redress. In the face of this rightward shift the most surprising decision of the Term was the Court’s embrace of claims that the U.S. Environmental Protection Agency (EPA) had acted unlawfully by refusing to use the Clean Air Act to combat climate change. In Massachusetts v EPA, the Court held that EPA had the authority to …

Deconstructing Equity: Public Ownership, Agency Costs, And Complete Capital Markets, Ronald J. Gilson, Charles K. Whitehead

Faculty Scholarship

The traditional law and finance focus on agency costs presumes that the premise that diversified public shareholders are the cheapest risk bearers is immutable. In this Essay, we raise the possibility that changes in the capital markets have called this premise into question, drawn into sharp relief by the recent private equity wave in which the size and range of public companies being taken private expanded signficantly. In brief, we argue that private owners, in increasingly complete markets, can transfer risk in discrete slices to counterparties who, in turn, can manage or otherwise diversify away those risks they choose to …

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Before You Log-On: Incorporating The Free Web In Your Legal Research Strategy, Lauren M. Collins

Faculty Scholarship

No abstract provided.

Beyond Cost-Benefit Analysis: A Pragmatic Reorientation, Sidney A. Shapiro, Christopher H. Schroeder

Faculty Scholarship

The weaknesses of cost-benefit analysis (CBA) are apparent for all to see. The theoretical underpinnings of positivism and rational choice methodologies have been dealt a significant blow in the post-positivist literature in science, political science and policy studies. Likewise, the performance of CBA itself has been the subject of a significant and persuasive challenge in the legal literature. This article critiques specifically the current federal form of regulatory impact analysis (RIA), centered institutionally in OIRA and centered methodologically in CBA. One of reasons for the continuing dominance of a CBA-centered RIA is the success of its proponents in maintaining that …

Markets, Systemic Risk, And The Subprime Mortgage Crisis, Steven L. Schwarcz

Faculty Scholarship

The recent subprime mortgage meltdown is undermining financial market stability and has the potential to cause a true systemic breakdown, collapsing the world's financial systems like a row of dominoes. This essay uses the subprime crisis to demonstrate that existing protections against systemic risk, which focus on banks and largely ignore financial markets, are anachronistic and misguided. Because companies increasingly access financial markets without going through banks, an effective framework for containing systemic risk must focus on markets.

Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener

Faculty Scholarship

This report provides an analysis of how intellectual property rights (IPRs), and alternatives to IPRs, might operate in green innovation. Part I of the paper discusses the economics of green innovation, including the important role that will need to be played by the private sector. Part II discusses the IPR issues, principally involving patents, that may arise if and when GHG externalities are addressed through the appropriate pricing of greenhouse gases. Part III addresses alternatives to traditional patents and exclusive licenses, including patent pools, liability rules, and prizes.

Law, Environmental Dynamism, Reliability: The Rise And Fall Of Calfed, Dave Owen

Faculty Scholarship

No abstract provided.

Finding Trademark Use: The Historical Foundation For Limiting Infringement Liability To Uses "In The Manner Of A Mark", Margreth Barrett

Faculty Scholarship

No abstract provided.

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin Feldman

Faculty Scholarship

No abstract provided.

Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage

Faculty Scholarship

In response to a prominent editorial by Dr. Jeffrey M. Drazen, Professor Sage explains how a relational approach has impeded health law's ability to effectively govern the American health care system, arguing that health law has traditionally focused on the physician-patient encounter rather than on achieving collective objectives (which he calls regulatory duties). Professor Sage traces health law's relational emphasis to private and public law, professional ethics and bioethics, budgetary and general politics, and health care consumerism. He concludes that four areas of health policy-conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and …

Measuring Outcomes: Post-Graduation Measures Of Success In The U.S. News & (And) World Report Law School Rankings, Andrew P. Morriss, William D. Henderson

Faculty Scholarship

The U.S. News & World Report annual rankings play a key role in ordering the market for legal education, and, by extension, the market for entry level lawyers. This Article explores the impact and evolution of placement and post-graduation data, which are important input variables that comprise twenty percent of the total rankings methodology. In general, we observe clear evidence that law schools are seeking to maximize each placement and post-graduation input variable. During the 1997 to, 2006 time period, law schools in all four tiers posted large average gains in employment rates upon graduation and nine months, which appear …

The Next Generation Of Mobile Source Regulation, Andrew P. Morriss

Faculty Scholarship

In the U.S. we have reached the point where further reductions in per-mile emissions from individual mobile sources of criteria pollutants will be both tiny and expensive. In addition, as population grows, total mobile source emissions in developed countries are likely to increase as our ability to engineer reductions on a vehicle-by-vehicle basis reaches its technological limit and is overwhelmed by the rising numbers of miles driven. Mobile source emissions world-wide will climb as greater wealth in the developing world fuels the demand for mobility. This article examines the demand for transportation and the regulation of transportation fuels and then …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

The Continuing Need For Broker-Dealer Professionalism In Ipos, James A. Fanto

Faculty Scholarship

No abstract provided.

Our Uniform Patent System, Clarisa Long

Faculty Scholarship

Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?

The Metaphysics Of Mind And The Practical Science Of The Law, Sarah Seo, John F. Witt

Faculty Scholarship

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

After the Revolution, according to Blumenthal’s account, American doctors and jurists turned to a sunny, Scottish Enlightenment theory of moral responsibility. In place of the tortured moral gymnastics of an older generation of …

Designing The Architecture For Integrating Accommodation: An Institutionalist Commentary, Susan P. Sturm

Faculty Scholarship

Integrating Accommodation, by Elizabeth F. Emens, reshapes the framework for evaluating workplace accommodations to assure consideration of their third-party benefits. In an ingenious move, the article extends the contact hypothesis, which conventionally emphasizes the attitudinal benefits of integrating diverse groups, to the impact of integrating the accommodations made so that disabled people can effectively participate in the workplace. The article shows how accommodations benefit third parties by improving their workplace conditions and thus have the potential to change attitudes toward disability, accommodation, and the Americans with Disabilities Act (ADA).

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.