Digital Commons Network^™

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense …

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 …

Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Market damages are the best default rule when parties trade in thick markets: They induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors bundle services that are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. When the cost of completion is large relative to the "market delta " – the increase in market value – courts concerned with avoiding "economic waste" limit the …

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

The Irony Of Judicial Elections, David E. Pozen

Faculty Scholarship

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of …

The Perils Of Theory, Peter L. Strauss

Faculty Scholarship

As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of …

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

This Essay explores the enforceability and presence of pro-seller contract terms in internet retail contracts. Analyzing case law on internet contract enforceability and a survey of 500 firms'websites, it demonstrates that even the enforceability of many internet contracts is questionable. It then presents new data that suggest that the prevalence of pro-seller contract terms is far less than usually assumed. It suggests that the benefit of making these terms enforceable is outweighed by the loss of user friendliness required for the necessary interface changes. Finally, it uses fresh statistical analyses to determine what relationship, if any, exists between enforceability, pro-seller …

Supposons Que La Discipline Et La Sécurité N'Existent Pas - Rereading Foucault's Collége De France Lectures (With Paul Veyne), Bernard E. Harcourt

Faculty Scholarship

We have come to know well and deploy easily the Foucauldian terms discipline and sécurité (what we now call governmentality), especially as a result of Michel Foucault's 1978 and 1979 lectures at the College de France. What we know less well, I contend, is how to critique them – discipline and sécurité, that is – the way that Foucault critiqued the terms folie, délinquance, or sexualité.

In this essay, I push further my meditations on punishment and subject discipline and sécurité to the same brutal method that Foucault used in his writings on folie, délinquance, and sexualité. I begin by …

The Formal Structure Of Patent Law And The Limits Of Enablement, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

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 …

Bootleggers, Baptists &(And) Televangelists: Regulating Tobacco By Litigation, Bruce Yandle, Joseph A. Rotondi, Andrew P. Morriss, Andrew Dorchak

Faculty Scholarship

The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation.

The Article begins by showing how tobacco regulation through the 1980s fit …

Public Service Must Begin At Home: The Lawyer As Civics Teacher In Everyday Practice, Bruce A. Green, Russell Pearce

Faculty Scholarship

Fifty years ago, the leading national representatives of the American legal profession, the American Bar Association (ABA), and the Association of American Law Schools (AALS), issued a joint report (the Report) on the nature of lawyers' professional responsibility in the context of the adversary system. Principally authored by legal philosopher Lon Fuller, who co-chaired the joint conference that issued it, the Report's premise was that the legal profession's inherited traditions provided only indirect guidance to lawyers in light of their changing roles, and that a "true sense of professional responsibility" must derive from an understanding of the "special services" that …

Desert And The Eighth Amendment Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment, Youngjae Lee

Faculty Scholarship

The task of this Article is to evaluate these two approaches to understanding the role of retribution as a constitutional constraint. And in order to do so, I would like to first answer a related question, one step removed: What should be the significance of ordinary intuitions about what people deserve when scholars theorize about what people deserve? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views-"the people" or the theorists? I suggest in this Article that the answer is twofold. …

Physicians And Execution: Highlights From A Discussion Of Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

The Empirics Of Prison Growth: A Critical Review And Path Forward, John F. Pfaff

Faculty Scholarship

A growing empirical literature has sought to explain the forces behind the significant expansion of the U.S. prison population over the past thirty years. Unfortunately, the studies to date have suffered from important methodological, conceptual, and definitional problems that have significantly curtailed their ability to identify causal effects. In this Article, I examine several of the central limitations and discuss remedies. I start by reviewing the theories that investigators have sought to test. I then discuss the studies' empirical defects, such as failing to account for endogenous relationships, overlooking the risk of model dependency, ignoring complex dynamic relationships, using variables …

Choosing The Top Candidate: Best Practices In Academic Law Library Hiring, Ronald E. Wheeler, Nancy P. Johnson, Terrance K. Manion

Faculty Scholarship

The authors discuss successful hiring practices in academic law libraries. Their discussion details each step of the hiring process, from vacancy to offer, and explores strategies for implementing the steps successfully. The processes examined include: reviewing the vacancy, assessing the library needs, forming an effective search committee, writing a winning job description, checking references, conducting an interview, and making an offer. The authors assert that a successful hire will influence every aspect of your library and, as such, a library needs to devote considerable attention and resources to librarian searches.

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Faculty Scholarship

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, …

The Trademark Use Requirement In Dilution Cases, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

The trademark use doctrine plays a critical role in ensuring that trademark law serves its proper purpose of encouraging market exchange and lowering consumer search costs. As we have explained in detail elsewhere, the doctrine ensures that trademarks do not become a weapon used to suppress speech or to interfere with rather than promote the efficient operation of the marketplace.

Those goals are even more important in the context of trademark dilution. Unlike a normal cause of action for trademark infringement, trademark dilution gives broader rights to a few famous mark owners to prevent even non-confusing uses in order to …

Should Access To Medicines And Trips Flexibilities Be Limited To Specific Diseases?, Kevin Outterson

Faculty Scholarship

From the perspective of public health, limiting access programs and TRIPS flexibilities to particular diseases would be quite dangerous and unnecessary. Dangerous because the diseases of the world's rich and poor countries are converging, including non-communicative diseases such as heart disease, stroke, diabetes, cancer and depression. Radically cheaper medicines for these conditions could significantly improve health in LMICs. Limitation is also unnecessary because proven tools can be deployed to preserve high-income markets while LMICs pursue equitable flexibilities.

To date, the important global legal texts retain broad application to all relevant diseases, but the some parties continue to propose disease-specific limitations, …

The American Law Institute's Draft Proposal To Bypass The Aggregate Settlement Rule: Do Mass Tort Clients Need (Or Want) Group Decision Making?, Nancy J. Moore

Faculty Scholarship

The American Law Institute has recently undertaken an entirely new project - Principles of the Law of Aggregate Litigation. The bulk of the project is devoted to class actions; however, a number of sections address various forms of non-class aggregations, and there is an extensive discussion of non-class aggregate settlements, including the controversial "aggregate settlement rule". Rule 1.8(g) of the ABA Model Rules of Professional Conduct limits the lawyer's ability to participate "in making an aggregate settlement of or against the clients" without the informed consent of each client, in which the clients have been advised of "the existence and …

Ronald Coase, Wendy J. Gordon

Faculty Scholarship

Coase, Ronald The work of economist Ronald Coase (1910-) transformed legal scholars' approaches to social policy, and spurred economists to focus attention on how institutions function. When Coase received the Nobel Prize for Economics in 1991, the Nobel Committee cited two key articles concerning Coase's pioneering notion of' transaction cost'.

Reviews In Medical Ethics: Stumbling On Options: A Review Of Readings In Comparative Health Law & Ethics, Frances H. Miller

Faculty Scholarship

Thanks to a series of storms sweeping up the eastern seaboard for three days, I found myself with four fivehour flight delays and two completely unrelated books in my briefcase. One of the books was the second edition of Professor Tim Jost's Readings in Comparative Health Law & Ethics,' which I was reviewing for this publication. The second was Daniel Gilbert's Stumbling on Happiness,² which someone - no doubt thinking I could use a little wisdom on the subject - had given me for my birthday. I did not mind the delays, for they gave me time …

Together We Can: Imagining The Future Of Employee Pensions, Maria O'Brien

Faculty Scholarship

Reviewing Teresa Ghilarducci & Christian E. Weller, Eds. Employee Pensions: Policies, Problems & Possibilities (LERA 2007)

A little over thirty years ago Congress enacted the Employee Retirement Income Security Act (ERISA),¹ a comprehensive reform of the existing system of pension regulation.² Solidly into its fourth decade, ERISA has been the object of much commentary as the various federal courts have struggled to infuse its complicated and sometimes imprecise pieces with coherent meaning. ³ Some have suggested that ERISA's primary goal of reducing the risk to employees of employer default has largely been achieved.⁴ Others believe that almost …

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, David S. Evans, Keith N. Hylton

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

The Mythical Beginnings Of Intellectual Property, Jessica Silbey

Faculty Scholarship

People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …

Health Care Reform In America: Beyond Ideology, George J. Annas

Faculty Scholarship

The inspiration for the following keynote address was drawn from an article authored by Professor Annas in 1995 which appeared in the New England Journal of Medicine.² In that article, Professor Annas sought to explain the Clinton healthcare plan's failure by analyzing the power and importance of the healthcare reform metaphors used in promoting the plan. In his remarks here, Professor Annas extends his analysis of healthcare related metaphors to those common in current healthcare reform parlance, theorizing that current efforts at healthcare reform have been unsuccessful, in part, because the metaphors used fail to frame the issues involved …

Competition Law And Copyright Misuse, John T. Cross, Peter K. Yu

Faculty Scholarship

In the past two decades, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection has increased, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. In response to these abuses, courts, litigants, policy makers, and commentators have increasingly embraced competition law, the doctrines of copyright misuse and unclean hands, and tort law concepts as counter-balancing tools. This article discusses four different types of abuse that has occurred in the copyright area and examines the various legal doctrines …

Why Plea-Bargaining Fails To Achieve Results In So Many Criminal Justice Systems: A New Framework For Assessment, Nuno Garoupa, Frank H. Stephen

Faculty Scholarship

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. In addition to forming an important part of criminal procedure in the United Kingdom, plea-bargaining has been transplanted to several civil law countries such as France and Italy. Informal versions, based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands, and around the world. The Law and Economics literature on plea-bargaining views it as an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Yet the success of …

Patent Judicial Wisdom, Srividhya Ragavan

Faculty Scholarship

This paper discusses the role of the Indian Judiciary vis-A-vis the patent regime, but carefully avoids creating an exhaustive wish list. Instead, this paper uses illustrations from the United States to draw valuable lessons. Importantly, the paper does not advocate that the Indian Judiciary emulate the United States judiciary. In fact, conventional wisdom dictates that copying the policies or precedents of the West does not always work in developing countries given the stark differences in ground realities like poverty, investments, infrastructure, and other such indicators. Instead, the judicial wisdom that characterizes each of the illustrations sets the common thread for …