Digital Commons Network^™

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Faculty Scholarship

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

Reinstatement V. Cramdown: Do Secured Creditors Win Or Lose?, Heather Lennox, Michelle M. Harner, Eric R. Goodman

Faculty Scholarship

No abstract provided.

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Faculty Scholarship

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

The Institutional Structure For Government Procurement: An Initial Look At The Emerging Chinese Model, Daniel J. Mitterhoff

Faculty Scholarship

Written during the drafting process for China's 2002 Government Procurement Law, this piece explores the characteristics of China's emerging public purchasing regime in comparison to that of the U.S. government procurement system, highlighting some of the challenges facing implementation of the new Chinese model.

The Temporally-Flawed Concept Of Binding Promises In American Collective Bargaining And Employee Benefits Law: A Source Of The Concurrent Crises In The U.S. Industrial Relations, Retirement, And Health Care Systems, Marley S. Weiss

Faculty Scholarship

The American collective bargaining system is in serious trouble, as is the employee benefits system providing pensions and health care benefits for millions of non-union as well as unionized workers and retirees. The portion of the labor force covered by collective bargaining has dropped so low that one can barely refer to it as a system. Simultaneously, the American private employer-based pension system is moving towards a crisis. Large employers with the finest pension plans, covering thousands of workers and retirees, in industry after industry, are terminating their pension plans, or replacing them with cheaper, weaker retirement programs, often while …

Accepting The Court's Invitation, Martha M. Ertman

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …

The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale

Faculty Scholarship

Retainer care arrangements allow patients to pay a fee directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as boutique medicine. Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most …

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character.

As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more …

The Structure Of Search Engine Law, James Grimmelmann

Faculty Scholarship

This Article provides a road map to issues of search engine law. It indicates what questions we must consider when thinking about search engines, and it indicates the interconnections among those questions. It does not endorse any particular normative framework for search. Nor does it recommend who should regulate search. Instead, it provides the necessary foundation for informed decision-making, by whatever regulator and whatever its normative approach.

Part I will explain how modern search engines function and describe the business environment within which they operate. Search engine operations can be understood in terms of the information flows among four principal …

The Punishment Of Dixie Shanahan: Is There Justice For Battered Women Who Kill?, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Political Advocacy And Taxable Entities: Are They The Next "Loophole"?, Donald B. Tobin

Faculty Scholarship

No abstract provided.

Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin

Faculty Scholarship

Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using "issue discussion" or "lobbying" as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer …

Symposium: Dred Scott After 150 Years: A Grievous Wound Remembered, John L. Gedid

Faculty Scholarship

No abstract provided.

The Law And Government Institute: Rapid Growth In Faculty, Offerings, Speakers, John L. Gedid

Faculty Scholarship

No abstract provided.

“A Rose By Any Other Word Would Smell As Sweet,” But Would It Still Be Treasured: The Mislabeling And Misunderstanding Of Parents And Grandparents In American Policy, Randy Lee

Faculty Scholarship

No abstract provided.

Overcoming The Behavioral Impetus For Greater U.S. Energy Consumption, John C. Dernbach

Faculty Scholarship

No abstract provided.

Stabilizing And Then Reducing U.S. Energy Consumption: Legal And Policy Tools For Efficiency And Conservation, John C. Dernbach

Faculty Scholarship

No abstract provided.

Explaining "Explained Decisions": Nasd's Proposal For Written Explanations In Arbitration Awards, Marilyn Blumberg Cane, Ilya Torchinsky

Faculty Scholarship

No abstract provided.

Introduction For 10th Annual Leo Goodwin Lecture Series, Tilting The Scales: The Changing Roles Of Women In The Law And Legal Practice, Olympia Duhart

Faculty Scholarship

Olympia Duhart, Introduction for 10th Annual Leo Goodwin Lecture Series, Tilting the Scales: The Changing Roles of Women in the Law and Legal Practice, 31 Nova Law Review 217 (2007).

Public Safety And Criminal Jurisdiction, Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Kevin Washburn

Faculty Scholarship

No abstract provided.

2006 Uniform Commercial Code Survey: Introduction, Robyn L Meadows, Russell A. Hakes, Stephn L. Sepinuck

Faculty Scholarship

No abstract provided.

Sales, Robyn L Meadows, Keith A. Rowley, Larry T. Garvin, Carolyn L. Dessin

Faculty Scholarship

No abstract provided.

Incitement To Violence Under Israeli Law And The Scope Of Protection Of Political Speech Under Israeli Freedom Of Speech Jurisprudence: A Comparative Analysis And An Alternative Perspective, Michal Buchhandler-Raphael

Faculty Scholarship

No abstract provided.

False Categories In Commercial Law: The (Ir)Relevance Of (In)Tangibility, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2006-2007, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

No abstract provided.

Contract As Agreement, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale

Faculty Scholarship

No abstract provided.

Philosopher Kings And International Tax: A New Approach To Tax Haven, Tax Flight, And International Tax Cooperation, Steven A. Dean

Faculty Scholarship

No abstract provided.

Promoting Cooperative Parenting: Programs And Prospects, Marsha Garrison

Faculty Scholarship

No abstract provided.