Digital Commons Network^™

Does International Human Rights Law In African Courts Make A Difference, Daniel Abebe

Faculty Scholarship

Is international human rights law effective in Africa? Extant studies assess effectiveness fry focusing on the potential of individual African regional and sub-regional courts to promote human rights and influence domestic actors. However, few if any studies actually evaluate the entire human rights jurisprudence of the five major African courts with jurisdiction to hear human rights claims. In this Article, I examine the entire human rights caseload of these courts from 1988 through 2015 along four important dimensions of effectiveness: (1) court structure; (2) volume of cases; (3) compliance rate; and (4) funding and independence. The Article finds that African …

The Dance Of Delegitimation: Democratic Government And The Wars On Terror, Philip C. Bobbitt

Faculty Scholarship

It is pretty standard fare to argue that in fighting a successful war on terror, we shall have to compromise some of our values. And while this is not altogether correct, it is certainly more insightful and candid than the claims that really nothing needs to change which the very events of 9/11 and its aftermath decisively refute. Nevertheless, this standard claim is wrong, but because it is wrong in a subtle, habitual way, it takes some analysis to get right.

Constitutional Amendment, Madhav Khosla

Faculty Scholarship

This chapter examines the formal method for constitutional amendment provided for in Article 368 of the Indian Constitution. It first reviews the early cases that gave rise to the Basic Structure doctrine, which placed substantive restrictions upon the power of amendment, before exploring subsequent developments and the application of the doctrine. It considers how Indian courts have addressed the idea of an unconstitutional constitutional amendment, with particular emphasis on the architectural framework that the courts have envisioned the Constitution to have. It explains how the Basic Structure doctrine has been used to understand the principles on which constitutionalism must depend.

Gags As Guidance: Expanding Notice Of National Security Letter Investigations To Targets And The Public, Rebecca Wexler

Faculty Scholarship

National Security Letters (NSLs) are administrative subpoenas that the FBI uses to demand information from Internet service providers without prior judicial approval. They almost always include nondisclosure orders, commonly called “gags,” which prohibit the recipient from discussing the letter’s contents or even its mere existence. Courts and commentators have expressed concern that these gags may be overbroad prior restraints that violate the First Amendment and shroud government surveillance in undue secrecy. On November 30, 2015, an NSL gag order was lifted in full for the first time after a federal district judge found no “good reason” to retain it.

This …

The Corporation's Place In Society, Gabriel Rauterberg

Faculty Scholarship

The vast majority of economic activity is now organized through corporations. The public corporation is usurping the state’s role as the most important institution of wealthy capitalist societies. Across the developed world, there is increasing convergence on the shareholder-owned corporation as the primary vehicle for creating wealth. Yet nothing like this degree of convergence has occurred in answering the fundamental questions of corporate capitalism: What role do corporations serve? What is the goal of corporate law? What should corporate managers do? Discussion of these questions is as old as the institutions involved.

Defining Agency And Its Scope (Ii), Deborah A. Demott

Faculty Scholarship

Fiduciary law necessarily raises issues of delineation and demarcation, which this paper demonstrates through examples involving common-law agents. Serving as an agent, and thus as a fiduciary, does not necessarily mean that agency law prescribes all duties that the agent owes the principal. The agent may have rights external to the relationship that the agent may exercise, distinct from the duty of loyalty owed the principal. When an agent acts outside the bounds of an agency relationship, the principal’s consent is not requisite to conduct that would constitute disloyalty within the bounds of the agency relationship. The paper illustrates the …

The Evolution Of Codification: A Principal-Agent Theory Of The International Law Commission's Influence, Laurence R. Helfer, Timothy Meyer

Faculty Scholarship

No abstract provided.

The Management Of Staff By Federal Court Of Appeals Judges, Mitu Gulati, Richard A. Posner

Faculty Scholarship

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows, of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that attempts to compare and evaluate the varieties of staff management techniques employed by federal court of appeals judges. This Essay aims to fill that gap. It is …

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

Manufacturing Barriers To Biologics Competition And Innovation, W. Nicholson Price Ii, Arti K. Rai

Faculty Scholarship

As finding breakthrough small-molecule drugs gets harder, drug companies are increasingly turning to “large molecule” biologics. Although biologics represent many of the most promising new therapies for previously intractable diseases, they are extremely expensive. Moreover, the pathway for generic-type competition set up by Congress in 2010 is unlikely to yield significant cost savings.

In this Article, we provide a fresh diagnosis of, and prescription for, this major public policy problem. We argue that the key cause is pervasive trade secrecy in the complex area of biologics manufacturing. Under the current regime, this trade secrecy, combined with certain features of FDA …

Targeted Subordination Of Official Sector Debt, Lee C. Buchheit, Mitu Gulati

Faculty Scholarship

If Greece’s debt is unsustainable, and most observers (including the IMF) seem to think it is, the country’s only source of funding will continue to be official sector bailout loans. Languishing for a decade or more as a ward of the official sector is undesirable from all perspectives. The Greeks bridle under what they see as foreign imposed austerity; the taxpayers who fund the official sector loans to Greece balk at the prospect of shoveling good money after bad. The question then is how to facilitate Greece’s ability to tap the private capital markets at tolerable interest rates. The IMF’s …

Value And The Weight Of Practical Reasons, Joseph Raz

Faculty Scholarship

Assuming that the value of options (actions, activities, or omissions) constitutes the proximate reason for pursuing them, this chapter considers whether we have reason to promote or maximise value. A proper argument would require establishing a negative, but raising doubts is less demanding — explaining some aspects of the relation between values and reasons that enable us to dispense with the doubtful thesis by illustrating alternative relations between values and reasons. Theses that value should be promoted are accompanied by a way of determining the strength of reasons (the stronger reason promotes more value). This chapter develops theoretical doubts about …

Art Resale Royalty Options, Herbert I. Lazerow

Faculty Scholarship

A federal resale royalty law that would require payments from the reseller of art to an artist when her work is resold is under consideration. This article analyzes provisions that might be contained in such a law with comparisons to Australia, England, France and California. It begins by pointing out that these payments can be conceptualized as either a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. It analyzes the kinds of artwork on which a resale royalty should be payable, with specific attention to multiples, crafts, antiques and wine. …

Regulating Financial Change: A Functional Approach, Steven L. Schwarcz

Faculty Scholarship

How should we think about regulating our dynamically changing financial system? Existing regulatory approaches have two temporal flaws. The obvious flaw, driven by politics and human nature (and addressed in other writings), is that financial regulation is overly reactive to past crises. This article addresses a less obvious but arguably more fundamental flaw: that financial regulation is normally tethered to the financial architecture, including the distinctive design and structure of financial firms and markets, in place when the regulation is promulgated. In order to effectively address future crises, this article argues, financial regulation must transcend that time-bound architecture. This could …

Understanding The Global In Global Finance And Regulation, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu

Faculty Scholarship

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized …

A Theory Of Copyright Authorship, Christopher Buccafusco

Faculty Scholarship

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Faculty Scholarship

No abstract provided.

Detoxing The Child Welfare System, Allison E. Korn

Faculty Scholarship

This Article considers the varying reasons why drug policies informing child welfare interventions are not evolving as part of the drug policy reform movement, which has successfully advocated for initiatives that decrease mass incarceration, end mandatory minimums, and decriminalize or legalize marijuana use and possession. Many existing child welfare laws and policies that address parental drug use rely on the premise that prenatal exposure to a controlled substance causes inevitable harm to a child. Furthermore, they presume that any amount of drug use by a parent places a child in imminent danger, or is indicative of future risk of harm. …

Modern-Day Monitorships, Veronica Root

Faculty Scholarship

When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a "Modern-Day Monitorship”. Modern-day monitorships are utilized in an array of contexts to assist in widely varying re­mediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization's efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organi­zational wrongdoing, they are not an outgrowth of careful study …

Can Sharing Be Taxed?, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In the past few years, we have seen the rise of a new model of production and consumption of goods and services, often referred to as the “sharing economy.” Fueled by startups such as Uber and Airbnb, sharing enables individuals to obtain rides, accommodations, and other goods and services from peers via personal computer or mobile application in exchange for payment. The rise of sharing has raised questions about how it should be regulated, including whether existing laws and regulations can and should be enforced in this new sector or whether new ones are needed.

In this Article, we explore …

In Search Of The Absent Shareholders: A New Solution To Retail Investors' Apathy, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Corporate law scholars have taken investors' rational apathy for granted for many years, considering it a necessary evil once ownership is no longer closely held. But how significant is retail investors' apathy and what is its impact? This Article is the first to provide comprehensive data on the true magnitude of retail investors' apathy and its negative impact on corporate governance. Building on behavioral economics tools, this Article then presents a novel solution that could substantially mitigate, if not fully eliminate, this long-standing problem of investors' rational apathy, with minimal regulatory burden. The solution is based on the premise that …

California Constitutional Law: The Right To An Adequate Education, Anne D. Gordon

Faculty Scholarship

Plaintiffs' victory in Vergara v. State, a case about teacher evaluation and employment regulations, has thrust the issue of educational adequacy into the spotlight in California. Campaign for Quality Education v. State, a case based on the California Constitution's education clause, has been fully briefed before the California Supreme Court and is waiting to be set for argument. These cases require California courts to again look to the constitution to determine what the right to education means. Although the California Supreme Court found this right fundamental over forty years ago, no supreme court decision has yet articulated whether this right …

Exemplary Law Books Of 2015: Five Recommendations, Femi Cadmus

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2015.

The Quintessential Law Library And Librarian In A Digital Era, Femi Cadmus

Faculty Scholarship

Libraries, like most institutions and industries today, are faced with disruptive technologies that challenge their relevancy in a digital era. As a result, erstwhile notions and nostalgia associated with the quintessential library and librarian are changing rapidly. This is a compelling era to reimagine the library, retaining essential traditions alongside the new technologies, which facilitate the preservation, discoverability, accessibility, and delivery of information. It is also an opportunity for libraries to respond creatively and innovatively to change. The quintessential law library and librarian cannot only survive but can also thrive in the digital era by continuing to demonstrate value through …

Being Deprived Of The Right To Effective Counsel In Removal Proceedings: Why The Eighth Circuit’S Decision In Rafiyev Must Be Overturned, Charles Shane Ellison

Faculty Scholarship

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter …

Dealing With Illegal Housing: What Can New York City Learn From Shenzhen?, Shitong Qiao

Faculty Scholarship

In New York City, owners violated zoning regulations and opened up their basements, garages, and other floors to rent to people (particularly low-income immigrants) priced out of the formal market. The more than 100,000 illegal dwelling units in New York City (NYC) were referred to as “granny units,” “illegal twos or threes,” or “accessory units.” Due to the safety and habitability considerations of “alter[ing] or modif[ying] of an existing building to create an additional housing unit without first obtaining approval from the New York City Department of Buildings (DOB),” the City government devoted a lot of resources to detecting and …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Aggregating Moral Preferences, Matthew D. Adler

Faculty Scholarship

Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. “Ideal-advisor” accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, what are the moral facts (in particular, the comparative moral goodness of the alternatives) when the advisors do diverge? …

Securitization And Post-Crisis Financial Regulation, Steven L. Schwarcz

Faculty Scholarship

There are few types of securities as internationally traded as those issued in securitization (also spelled securitisation) transactions. The post-financial crisis regulatory responses to securitization in the United States and Europe are, at least in part, political and ad hoc. To achieve a more systematic regulatory framework, this article examines how existing regulation should be supplemented by identifying the market failures that apply distinctively to securitization and analyzing how those market failures could be corrected. Among other things, the article argues that Europe’s regulatory framework for simple, transparent, and standardised (“STS”) securitizations goes a long way towards addressing complexity as …