Digital Commons Network^™

Using Stock And Stock Options To Minimize Patent Royalty Payment Risks After Medimmune V. Genentech, Sean O'Connor

Faculty Scholarship

No abstract provided.

The Twail Discourse: The Emergence Of A New Phase, Madhav Khosla

Faculty Scholarship

One of the most important discourses to have emerged in opposition to mainstream international law has been the third world approaches to international law (TWAIL). This discourse may be divided into two historical phases: TWAIL I and TWAIL II. While TWAIL I was characterised by a focus on colonization and the hegemonic use of international law by powerful nations, TWAIL II has concentrated on international institutions and the impact of globalisation. It is posited that the TWAIL discourse is in the process of entering into a new phase post 9/11. This phase can be understood as one in which TWAIL …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

Faculty Scholarship

This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.

The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Where Have All The Parties Gone? Fraenkel And Grofman On The Alternative Vote - Yet Again, Donald L. Horowitz

Faculty Scholarship

The alternative vote (AV) is a preferential electoral system that tends to reward political moderation and compromise. Fraenkel and Grofman have repeatedly attempted to show that AV is not conducive to inter-ethnic moderation in severely divided societies. In this response to their latest attempt,the author points out that neither political party coordination of the vote nor strategic voting plays any part in their analysis. In contrast, he explains how moderate parties of one ethnic group are able to induce their supporters to cast ballots for moderate parties supported by voters of another ethnic group. Prof. Horowitz also explains why the …

Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …

Market Fragmenting Regulation - Why Gasoline Costs So Much (And Why It's Going To Cost More), Andrew P. Morriss, Nathaniel Stewart

Faculty Scholarship

Virtually everyone holds an opinion on what is wrong with gasoline markets. Some critics argue that gasoline costs too much, fattening greedy oil barons at the expense of consumers. Some link reducing oil producers' profits to stopping terrorism. Others contend that gasoline costs too little, subsidizing suburban sprawl and gas-guzzling SUVs at the expense of the environment. Web sites track gasoline prices and grocery stores sell low-cost fuel to lure shoppers. Policy makers debate whether gas taxes should be cut to lower the cost of living; need to be increased to make drivers pay the full cost of their behavior; …

Felix Cohen, Anti-Semitism And American Indian Law. Book Review Of Architect Of Justice: Felix S. Cohen And The Founding Of American Legal Pluralism By Dalia Tsuk Mitchell, Kevin Washburn

Faculty Scholarship

Felix Cohen and his work and legacy are discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen's life, involving apparent anti-Semitism at the Department of Justice. Because the episode is not fully explored in this otherwise excellent biography, Cohen and his motivations in Indian law remain a mystery in some respects. The essay also discusses some of the paradoxes of Cohen's key involvement in federal Indian policy and the contemporary importance of some of his legacies in …

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

Faculty Scholarship

In this Article, the Author explores two unexpected consequences of joining science and law at the hip, and considers whether these consequences represent reciprocal contamination, or instead cross-fertilization, of law and science. In Part I of this Article, the Author provides a brief review of the evolution of legal standards for the admissibility of what is termed "scientific evidence," including Frye and Daubert and their progeny. In Part II of the Article, the Author gives a (necessarily limited) overview of certain modern scientific paradigms of reliability and he explores the realities of peer reviews and of other institutions in science …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Race To The Center And Other Lessons Of Globalization, Jagdish N. Bhagwati

Faculty Scholarship

An Interview with Kenta Tsuda, New York, NY, 1 June 2006.

]agdish Bhagwati is a professor of economics and law at Columbia University and senior fellow in international economics at the Council on Foreign Relations. His publications include The Economics of Underdeveloped Countries and In Defense of Globalization. He is the founder of the Journal of International Economics and Economics & Politics.

Lng Facility Siting And Environmental (In)Justice: Is It Time For A National Siting Scheme?, Eileen Gauna

Faculty Scholarship

This Article examines the distributional and other environmental justice issues arising from the current initiative to rapidly site multiple LNG import facilities in order to increase the supply of natural gas into the continental United States. This Article further examines the necessity of creating a national siting scheme to avoid exacerbating existing racial disparities in risk-producing land use practices.

The Politics Of Risk: Pre-Litigation Site Assessment In Houston, Texas, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Novel Steroidal Saponins, Sch 725737 And Sch 725739, From A Marine Starfish, Novodinia Antillensis., Shu-Wei Yang, Tze-Ming Chan, Alexei Buevich, T. Priestley, J. Crona, John K. Reed, Amy E. Wright, Mahesh Patel, Vincent Gullo, Guodong Chen, B. Pramanik, Min Chu

Faculty Scholarship

Bioassay-guided fractionation of an active fraction from an extract of a marine starfish, Novodinia antillensis, led to the isolation and identification of two new saponins, Sch 725737 (1) and Sch 725739 (2). Compound 1 was identified as the NaV1.8 inhibitor with IC50 of _9 lM. The purification and the structure elucidation of these two saponins are described.

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

No abstract provided.

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Faculty Scholarship

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

A Search-Costs Theory Of Limiting Doctrines In Trademark Law, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

Trademarks have value because they reduce consumer search costs and thus promote overall efficiency in the economy.

While the search costs theory provides a compelling argument for trademark rights, it also compels an equally important - but often overlooked - set of principles for defining and limiting those rights. Certainly, trademark laws can make it easier and cheaper for consumers to locate products with desired qualities, thus making markets more competitive. Yet if carried too far, trademark law can do the opposite: it can entrench market dominance by leading firms and make it harder for competitors to crack new markets. …

Tort Negligence, Cost-Benefit Analysis, And Tradeoffs: A Closer Look At The Controversy, Kenneth Simons

Faculty Scholarship

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution …

Biomedical Ethics And The Law: A Critical Perspective, Keith N. Hylton

Faculty Scholarship

Health law, a fast growing field of scholarship, appears to consist largely of two schools. One focuses on health care antitrust, taking as its fundamental premise the notion that health care markets should be distinguished from and treated differently than other markets. This premise underlying health care antitrust is based on a few recurring features of health care markets, such as informational asymmetry, that are taken as sufficient bases for treating them differently.¹ The other school of health law is biomedical ethics, which has taken on increasing importance in view of the many tradeoffs that arise when health care …

Alternatives To Prescriptive Regulation Of Workplace Health And Safety, Michael S. Baram

Faculty Scholarship

Many promises to advance occupational safety and health have been made by developed nations. Expressed in the “hard law” of legislation are promises to regulate employers and workplaces, and to hold employers accountable when they do not comply. However, problems arise when regulators try to transform the promises into performance.

Determining An Arbitrator's Jurisdiction: Timing And Finality In American Law, William W. Park

Faculty Scholarship

In arbitration law, few matters engender more stimulating debate than the interaction of arbitrators and judges with respect to jurisdictional determinations. When one side asserts that it never agreed to arbitrate, or contests the arbitrator’s substantive mission or procedural powers, someone must determine the existence, validity, and/or scope of the arbitration clause.

The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, Robert D. Sloane

Faculty Scholarship

Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the …

Grounding Trademark Law Through Trademark Use, Stacey Dogan

Faculty Scholarship

The debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability …

Symposium: Current Issues In Community Economic Development: Foreword: Entrepreneurship, Race, And The Current Environment For Community Economic Development, Eric J. Gouvin

Faculty Scholarship

On March 30, 2007, the Western New England College School of Law and the School of Business jointly hosted the second annual academic conference on Current Issues in Community Economic Development, sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference promotes the two primary goals of the Law and Business Center: (1) to provide technical legal and business assistance to entrepreneurs and (2) to sponsor educational and outreach events focused on entrepreneurship and economic development. The Law and Business Center is a unique resource in Western Massachusetts. The combination of legal and business …

Enron And The Special Purpose Entities - Use Or Abuse - The Real Problem - The Real Focus, Neal Newman

Faculty Scholarship

On the heels of Enron's debacle came the Sarbanes-Oxley Act of 2002, the far reaching legislative reform that was designed to shore-up the accounting and corporate governance shortfalls that the legislature and the investing public believed allowed Enron to do what it did unabated. Supplementing the reforms set forth in the Sarbanes-Oxley Act are a number of accounting rules, guidelines, and interpretations that are designed to curtail the type of accounting fraud Enron perpetrated through its use (or more accurately abuse) of what are referred to as special purpose entities (SPEs). Although much has been written chronicling and analyzing the …

The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers

Faculty Scholarship

Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these 'have-nots' in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.

Using …

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on conflicts between the private interests of the wireless industry and the public’s interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

In many respects, the mobile wireless market is and remains a wonder. Thanks to both policy and technological innovations, devices that were science fiction 30 years ago are now widely available. Over the last decade, wireless mobile has been an “infant industry,” attempting to achieve economies of scale. That …

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices …

Law And The Market: The Impact Of Enforcement, John C. Coffee Jr.

Faculty Scholarship

Are the U.S. capital markets losing their competitiveness? A fascinating question, but what does it mean and how can it be intelligently assessed? This Article will explore the newly popular thesis that draconian enforcement and overregulation are injuring the United States and will offer a sharply contrasting interpretation: higher enforcement intensity gives the U.S. economy a lower cost of capital and higher securities valuations. This higher intensity attracts some foreign listings, but deters others.

This Article will proceed by first mapping the marked variation in the intensity of enforcement efforts by securities regulators in selected nations and then relating these …