Digital Commons Network^™

Finessing Well-Plead Derivative Lawsuits: The Implications Of The Minnesota Supreme Court's Selection Of Auerbach Over Zapata, James F. Hogg

Faculty Scholarship

This article begins with the factual background and subsequent procedural history of the UnitedHealth Group Inc. shareholder derivitve litigation, as an instance where Minnesota courts effectively disposed of the factual allegations in a well-pleaded derivative action, directed at the behavior and actions of members of a board of directors, without reviewing finding of facts or reasoning behind the SLC's report or conclusions. The purpose of this article is to understand how a board-appointed committee can convince a court to dismiss and settle a derivative suit without showing detailed justification, and this is achieved by reviewing the statutes, case law, and …

Educational Workshops On Settlement And Dispute Resolution: Another Tool For Self-Represented Litigants In Family Court, Jim Hilbert

Faculty Scholarship

This article outlines the need to help self-represented litigants (SLRs or pro se parties) understand more about how they might resolve their disputes through settlement. The article discusses the remarkable growth in the number of people representing themselves in the legal system, particularly in family court. To supplement the existing support system for SLRs, the article proposes including settlement and negotiation educational workshops for SRLs so that they can better understand 1) the prominent role of settlement in our legal system, 2) their power within the settlement process, and 3) some fundamental guidance on how they might approach settlement negotiations. …

Cloned Meat, Voluntary Food Labeling, And Organic Oreos, Donna M. Byrne

Faculty Scholarship

In December 2006, the Food and Drug Administration (FDA) announced that it had reviewed all the available evidence and was poised to approve meat and milk from cloned animals and their progeny. Such products, said the FDA, are virtually identical to meat or milk from a non-clone. Further, the FDA announced it would almost certainly not require food from clones to be labeled as such. Part I of this article identifies three functions that labels perform, outlines the types of information usually required, and introduces the rule that voluntary label information cannot be misleading. Part II focuses on process information …

The Uniform Collaborative Law Act And Intimate Partner Violence: A Roadmap For Collaborative (And Non-Collaborative) Lawyers, Nancy Ver Steegh

Faculty Scholarship

This Article examines the intimate partner violence provisions of the Uniform Collaborative Law Act “UCLA” and provides an analytical roadmap for collaborative lawyers. The lack of required intimate partner violence training for collaborative lawyers presents a major roadblock for implementation of the Act. Consequently, states adopting the UCLA should take immediate steps to ensure that courts and bodies regulating lawyers require ongoing training. In the meantime, to gain valuable expertise and avoid potential liability, collaborative lawyers should voluntarily seek it.

International Developments In Consumer Financial Services Law 2007-2008, Gregory M. Duhl

Faculty Scholarship

This Survey reviews international consumer financial services law developments in 2007 and 2008 (through August 15, 2008) in the areas of payment systems, the European Convention of Human Rights, insolvency laws, and consumer privacy. This review makes the contrast between the European and U.S. approaches to consumer regulation apparent, in particular the EU preference for direct regulation as compared to the tradition of private remedies in the United States.

A Matter Of Trust: Should No-Reliance Clauses Bar Claims For Fraudulent Inducement Of Contract?, Henry Allen Blair

Faculty Scholarship

In this Article, Professor Allen Blair examines the enforceability of no-reliance clauses--contractual disclaimers designed to prevent parties from relying on extra-contractual representations to prove fraudulent inducement claims. Many courts are skeptical of such disclaimers and either refuse to enforce them or will enforce them only subject to substantial restrictions. These courts base their decisions on generic moral prohibitions against lying. This Article argues, however, that these courts reach their conclusion too easily. They presume that no-reliance clauses can serve no legitimate contract function and thus never provide value to parties. But, in at least some cases between sophisticated parties, no-reliance …

Beyond Bidil: The Expanding Embrace Of Race In Biomedical Research And Product Development, Jonathan Kahn

Faculty Scholarship

In 2005 the FDA approved BiDil, the first drug ever to include a race-specific indication on its label - to treat heart failure in a “black” patient. In the aftermath of this controversial approval and subsequent marketing of the drug, many have wondered whether BiDil was an anomaly or a harbinger of things to come. This article moves beyond BiDil to explore how similar yet distinct models are developing for the continuing exploitation of race in biomedical practice and product development. It will explore the tensions embedded in the persistent use of racial categories even as specific genetic variations linked …

Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Faculty Scholarship

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

An Overt Turn On Covert Action, Afsheen John Radsan

Faculty Scholarship

Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances.

Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. …

Life At The Center, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

What We Can Learn About Appeals From Mr. Tillman's Case: More Lessons From Another Dna Exoneration, Giovanna Shay

Faculty Scholarship

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman's case is a paradigmatic DNA exoneration-involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This Article uses the published opinions affirming Mr. Tillman's conviction-particularly his direct appeal to the Connecticut Supreme Court, and his appeal from the state habeas proceeding-to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman's exoneration reveal any …

2009 Survey Of Books Related To Women And The Law: Review: Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

The Author reviews journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) which presents an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars …

Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

Journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) is an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of …

Litigating Secrets: Comparative Perspectives On The State Secrets Privilege, Sudha Setty

Faculty Scholarship

The state secrets privilege is a common law evidentiary privilege, which enables the government to prevent disclosure of sensitive state secrets in the course of litigation. The privilege has never been clarified by statute. Congress undertook reform efforts in 2008 out of concerns that the Bush administration overreached in its claims of privilege by seeking more dismissals during the pleadings stage, and that courts have not used a uniform standard to assess those claims. This Article considers the modern application of the privilege in Scotland, England, Israel, and India—an analysis that contextualizes both the current use of the U.S. privilege …

Marriage Equality For Same-Sex Couples: Where We Are And Where We Are Going, Jennifer Levi

Faculty Scholarship

The legal landscape for same-sex couples seeking to marry has shifted dramatically over the last five years. On October 10, 2008, the Connecticut Supreme Court became the third state high court to rule that its state constitution could not sustain a statutory framework that excludes same-sex couples from marrying, following the Massachusetts Supreme Judicial Court on November 18, 2003, and the California Supreme Court on May 15, 2008. Same-sex couples throughout the country have gotten married in Connecticut, Massachusetts, California, and in other countries throughout the world that provide full marriage equality, including in Canada. The Author discusses the developments …

Symposium: Defining Race: Colorblind Diversity: The Changing Significance Of "Race" In The Post-Bakke Era, Bridgette Baldwin

Faculty Scholarship

In 1954, fifty-eight years after the Plessy v. Ferguson decision, the Supreme Court was afforded another opportunity to reverse the “separate but equal doctrine” in Brown v. Board of Education of Topeka (Brown I). Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville proclaimed that any program that structurally appeared to maintain segregation would …

Anticipating The Unthinkable: The Adequacy Of Risk Management In Finance And Environmental Studies, James A. Fanto

Faculty Scholarship

No abstract provided.

Recognizing The "Bad Barrel" In Public Business Firms: Social And Organizational Factors In Misconduct By Senior Decision-Makers, James A. Fanto

Faculty Scholarship

No abstract provided.

The Subjective Experience Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

Reconceptualizing Trespass, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Defusing The “Atomic Bomb” Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckesson Et Al., Sean O'Connor

Faculty Scholarship

No abstract provided.

What We Learn In Troubled Times: Deregulation And Safe Work In The New Economy, Susan Bisom-Rapp

Faculty Scholarship

Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness. By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light …

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Faculty Scholarship

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …

"Death Is Different" And A Refugee's Right To Counsel, John Mills, Kristen M. Echemendia, Stephen Yale-Loehr

Faculty Scholarship

No abstract provided.

The Mess Of Manifest Disregard, Hiro Aragaki

Faculty Scholarship

No abstract provided.

Toward An Architecture Of Health Law, Wendy K. Mariner

Faculty Scholarship

This article examines 3 questions: What is an academic field of law? Is health law such a field? If it is, how can or should it be described? The first question may have no answer; scholars and practicing lawyers have fashioned their owns spheres of expertise. Describing health law faces particular challenges, including the breadth of applicable doctrines and the decline of unique medically-oriented adaptations of general principles. The article offers a blueprint based on the health and human rights framework as a functional description of the eclectic and translegal field of health law. This approach can identify the principles …

Of Patents And Property, James Bessen, Michael J. Meurer

Faculty Scholarship

Do patents behave substantially like property rights in tangible assets, in that they encourage development and innovation? This article notes that historical evidence, cross-country evidence, economic experiments, and estimates of net benefits all indicate that general property rights institutions have a substantial direct effect on economic growth. Conversely, with a few important exceptions like chemicals and pharmaceuticals, empirical evidence indicates that intellectual property rights have at best only a weak and indirect effect on economic growth. Further, it appears that for public firms in most industries today, patents may actually discourage investment in innovation for fear of winding up on …

A Tale Of Two Debtors: Bankruptcy Disparities By Race, Rory Van Loo

Faculty Scholarship

This article offers the first quantitative evidence on race and bankruptcy. Minority debtors fare worse overall in bankruptcy — blacks are 40% and Hispanics 43% less likely than whites to receive a discharge in Chapter 13 after controlling for variables such as education, income, and employment. While the data do not allow for causal inference, Chapter 13 trustees were twice as likely to have made a motion to dismiss even against black debtors who ultimately completed their multi-year bankruptcy plans than against similar white debtors. The paper also indicates that a lack of attorney representation by minority debtors may make …

More Than What Courts Do: Jurisprudence, Decision, And Dignity — In Brief Encounters And Global Affairs, Robert D. Sloane

Faculty Scholarship

This brief essay is the edited transcript of the author’s opening remarks for a panel on jurisprudence in international law at the conference entitled Realistic Idealism in International Law, held at Yale Law School on April 24, 2009, in honor of W. Michael Reisman. It canvasses some of the animating factors and features of the New Haven School of jurisprudence with which Reisman is identified, and it seeks to explain and clarify some of his signature contributions to the School’s methodology.

The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane

Faculty Scholarship

Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected …