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2006

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Privacy, Power, And Humiliation At Work: Re-Examining Appearance Regulation As An Invasion Of Privacy, Catherine Fisk Jan 2006

Privacy, Power, And Humiliation At Work: Re-Examining Appearance Regulation As An Invasion Of Privacy, Catherine Fisk

Faculty Scholarship

Workplace rules that deny fundamental aspects of personal autonomy are (in many states) and should be actionable invasions of privacy. Perhaps nowhere is the invasion more keenly felt than when an employer demands, under penalty of forfeiting one's livelihood, that one dress or alter one's physical appearance in a way that one finds offensive, degrading, inappropriate, or alien. Clothes and appearance are constitutive of how we see and feel about ourselves and how we construct ourselves for the rest of the world to see. Conventions of appearance for women and men, for racial, ethnic, and religious groups express and observe …

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Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai Jan 2006

Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai

Faculty Scholarship

In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the …

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Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher Jan 2006

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.

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Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher Jan 2006

Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher

Faculty Scholarship

This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana’s customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector.

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Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker Jan 2006

Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract …

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Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher Jan 2006

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …

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From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs Jan 2006

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …

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The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos Jan 2006

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …

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Inside The Corporate Veil: The Character And Consequences Of Executives’ Duties, Deborah A. Demott Jan 2006

Inside The Corporate Veil: The Character And Consequences Of Executives’ Duties, Deborah A. Demott

Faculty Scholarship

This paper is based on a keynote address to the 2006 annual workshop of the Australian Corporate Law Teachers' Association on "The Pathology of Corporate Law." The paper's thesis is that fuller understanding of many corporate malfunctions requires examination of organizational structures and patterns of interaction below the level of the board within a corporation's hierarchy. The paper argues that there is merit to mandating duties of skill and care at the executive level, drawing on examples of executive conduct in recent corporate fiascos. The paper also explores the application of the business judgment rule to officers. As conventionally formulated, …

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Academic Freedom Issues For Academic Librarians, Richard A. Danner, Barbara Bintliff Jan 2006

Academic Freedom Issues For Academic Librarians, Richard A. Danner, Barbara Bintliff

Faculty Scholarship

Professors Danner and Bintliff argue that understanding academic freedom and faculty tenure is important for academic librarians, both to provide better perspective on the concerns of faculty researchers and teachers, and to highlight matters of common concern to librarians and faculty. The authors discuss the basic tenets of academic freedom and tenure, then compare academic freedom with the intellectual freedom concerns of librarians. The article concludes by introducing several current issues of importance to librarians, faculty, and everyone concerned with academic freedom on university campuses.

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Brief Amici Curiae In Support Of Respondent, Phillip Morris, Usa, Neil Vidmar Jan 2006

Brief Amici Curiae In Support Of Respondent, Phillip Morris, Usa, Neil Vidmar

Faculty Scholarship

Brief of Neil Vidmar, et al. Amici Curiae in support of Respondent, Phillip Morris, USA v. Williams, No. 15-1256 (U.S. Supreme Court, September 15, 2006) In Williams v. Philip Morris (1999) an Oregon jury awarded the plaintiff $800,000 in compensatory damages and $79.5 million in punitive damages, a verdict upheld by the Oregon Supreme Court, but appealed to the U.S. Supreme Court (oral argument set for Oct 31, 2006). Critics of punitive damages argue that (a) juries are incompetent, irrational or biased in awarding punitive damages and (b) judges and appellate courts fail to police excessive verdicts. This amicus brief …

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The Story Of Ingersoll-Rand V. Ciavatta: Employee Inventors In Corporate Research & Development — Reconciling Innovation With Entrepreneurship, Catherine Fisk Jan 2006

The Story Of Ingersoll-Rand V. Ciavatta: Employee Inventors In Corporate Research & Development — Reconciling Innovation With Entrepreneurship, Catherine Fisk

Faculty Scholarship

Most inventors work as employees for the majority of their careers and are often required as a condition of employment to sign a contract drafted by the firm's lawyers giving the firm exclusive control over as broad a range of economically valuable information and innovation that the lawyers think is legally feasible. Such contracts typically claim as firm property - both during and after an employee's term of employment - the nebulous category of "proprietary information," along with the slightly more clearly (though still poorly) defined category of "trade secrets." These contracts, variously known as "invention assignment agreements" or "holdover …

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Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels Jan 2006

Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels

Faculty Scholarship

The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence. This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decision's enforceability elsewhere (indirect jurisdiction), are logically independent from each other. …

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The Public Responsibility Of Structured Finance Lawyers, Steven L. Schwarcz Jan 2006

The Public Responsibility Of Structured Finance Lawyers, Steven L. Schwarcz

Faculty Scholarship

Lawyers, increasingly, are scrutinized as to their public responsibility when companies fail, particularly where the lawyer's involvement with the failed company is nontraditional and, arguably, intertwined with the failure. One of the least traditional roles of lawyers today is as counsel in structured finance transactions. This article focuses on the public responsibility of lawyers involved in these transactions.

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Sosa, Customary International Law, And The Continuing Relevance Of Erie, Curtis A. Bradley, Jack L. Goldsmith, David H. Moore Jan 2006

Sosa, Customary International Law, And The Continuing Relevance Of Erie, Curtis A. Bradley, Jack L. Goldsmith, David H. Moore

Faculty Scholarship

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This "modern position" came under attack by so-called "revisionist" critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of …

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The King Of Rockingham County And The Original Bridge To Nowhere, Barak D. Richman Jan 2006

The King Of Rockingham County And The Original Bridge To Nowhere, Barak D. Richman

Faculty Scholarship

This chapter, reveals the story -- the clash of personalities, the economic tensions, and the political significance -- behind Rockingham County v. Luten Bridge Co. Since its publication in 1929, the opinion has proceeded to leave an impression on generations of law students. Luten Bridge, a staple in most contracts casebooks, is known today as the paradigmatic case that demonstrates the duty to mitigate damages in contract law, whereby a nonbreaching party is not compensated for performance that occurs after the other party announces an intention to breach. This chapter takes on three objectives: it identifies the case's original importance, …

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“Opening-Up” The Wto: What Does It Mean For China?, Joost H. B. Pauwelyn Jan 2006

“Opening-Up” The Wto: What Does It Mean For China?, Joost H. B. Pauwelyn

Faculty Scholarship

Text of speech delivered at China University of Political Science and Law (CUPL), Beijing, October 9; Tsinghua Law School, Beijing, October 10; Wuhan University, WTO Center, October 12; Fudan University, Shanghai, October 13, 2006

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Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner Jan 2006

Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner

Faculty Scholarship

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than …

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In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl Jan 2006

In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl

Faculty Scholarship

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those …

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Some Modest Uses Of Transnational Legal Perspectives In First-Year Constitutional Law, Neil S. Siegel Jan 2006

Some Modest Uses Of Transnational Legal Perspectives In First-Year Constitutional Law, Neil S. Siegel

Faculty Scholarship

In this essay, Prof. Siegel identifies several uses of transnational perspectives in first-year constitutional law: (1) comparing American constitutional arrangements to those in other countries; (2) teaching international law and foreign legal experiences when relevant to U.S. litigation in the "war on terror"; and (3) examining the U.S. Supreme Court's invocations of foreign legal practices. These uses are illustrated with examples from doctrinal areas that are covered in his course. While each use serves a distinct pedagogical purpose, cumulatively they underscore the increasing importance of transnational legal perspectives in U.S. constitutional law. He concludes, however, with a cautionary note. Selectivity …

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Private Law Beyond The State? Europeanization, Globalization, Privatization, Ralf Michaels, Nils Jansen Jan 2006

Private Law Beyond The State? Europeanization, Globalization, Privatization, Ralf Michaels, Nils Jansen

Faculty Scholarship

Although the changing relation between private law and the state has become the subject of many debates, these debates are often unsatisfactory. Concepts like 'law', 'private law', and 'globalization' have unclear and shifting meanings; discussions are confined to specific questions and do not connect with similar discussions taking place elsewhere. In order to initiate the necessary broader approach, this article brings together the pertinent themes and aspects from various debates. It proposes a conceptual clarification of key notions in the debate- "private law," "state," "Europeanization," "globalization," and "privatization"- that should be of use beyond the immediate purposes of the rest …

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Private Law And The State: Comparative Perceptions And Historic Observations, Ralf Michaels, Nils Jansen Jan 2006

Private Law And The State: Comparative Perceptions And Historic Observations, Ralf Michaels, Nils Jansen

Faculty Scholarship

The relation of private law to the state is one of the most complex aspects of the challenges posed for the law by Europeanization and globalization. It is not only distinct from that between public law and the state; it is also not the same in different legal systems. This article provides a historical and comparative overview of this relation in Germany and in the United States. It analyses the historical conditions and reasons for which the state became the ultimate source of authority for private law in Europe but remained largely without importance for doctrinal discussions and jurisprudential decisions …

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Two Paradigms Of Jurisdiction, Ralf Michaels Jan 2006

Two Paradigms Of Jurisdiction, Ralf Michaels

Faculty Scholarship

No abstract provided.

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Book Review, Joost H. B. Pauwelyn Jan 2006

Book Review, Joost H. B. Pauwelyn

Faculty Scholarship

Reviewing Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford University Press, 2005)

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The News Media’S Influence On Criminal Justice Policy: How Market Driven News Promotes Punitiveness, Sara Sun Beale Jan 2006

The News Media’S Influence On Criminal Justice Policy: How Market Driven News Promotes Punitiveness, Sara Sun Beale

Faculty Scholarship

This Article argues that commercial pressures are determining the news media's contemporary treatment of crime and violence, and that the resulting coverage has played a major role in reshaping public opinion, and ultimately, criminal justice policy. The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that frequently override traditional journalistic criteria for newsworthiness. This Article explores local and national television's treatment of crime, where the extent and style of news stories about crime are being adjusted to meet perceived viewer demand and advertising strategies, which frequently emphasize particular …

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A Bridge, A Tax Revolt, And The Struggle To Industrialize: The Story And Legacy Of ‘Rockingham County V. Luten Bridge Co.’, Barak D. Richman, Jordi Weinstock, Jason Mehta Jan 2006

A Bridge, A Tax Revolt, And The Struggle To Industrialize: The Story And Legacy Of ‘Rockingham County V. Luten Bridge Co.’, Barak D. Richman, Jordi Weinstock, Jason Mehta

Faculty Scholarship

Rockingham County v. The Luten Bridge Company is now a staple in most Contracts casebooks. The popular story goes as follows: Rockingham County entered into a contract with the Luten Bridge Company to build a bridge over the Dan River. Shortly after work commenced, the County repudiated the contract. Nonetheless, the Luten Bridge Company continued with its construction project and sued the County for the entire bill. Judge John J. Parker, the long-time chief judge of the Fourth Circuit, ruled in the famous 1929 opinion that the County was liable only for the costs up until the time of breach …

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Eu Law As Private International Law? Re-Conceptualising The Country-Of-Origin Principle As Vested Rights Theory, Ralf Michaels Jan 2006

Eu Law As Private International Law? Re-Conceptualising The Country-Of-Origin Principle As Vested Rights Theory, Ralf Michaels

Faculty Scholarship

One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the provider's home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law …

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How Community Institutions Create Economic Advantage: Jewish Diamond Merchants In New York, Barak D. Richman Jan 2006

How Community Institutions Create Economic Advantage: Jewish Diamond Merchants In New York, Barak D. Richman

Faculty Scholarship

This paper argues that Jewish merchants have historically dominated the diamond industry because of their ability to reliably implement diamond credit sales. Success in the industry requires enforcing executory agreements that are beyond the reach of public courts, and Jewish diamond merchants enforce such contracts with a reputation mechanism supported by a distinctive set of industry, family, and community institutions. An industry arbitration system publicizes promises that are not kept. Intergenerational legacies induce merchants to deal honestly through their very last transaction, so that their children may inherit valuable livelihoods. And ultra-Orthodox Jews, for whom participation in their communities is …

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Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller Jan 2006

Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller

Faculty Scholarship

This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court’s decision in Crawford v. Washington (2004) that dramatically …

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Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley Jan 2006

Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

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