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2010

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Retributivism Refined - Or Run Amok?, Kenneth Simons Jan 2010

Retributivism Refined - Or Run Amok?, Kenneth Simons

Faculty Scholarship

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does ordoes not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced …

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Trademark Remedies And Online Intermediaries, Stacey Dogan Jan 2010

Trademark Remedies And Online Intermediaries, Stacey Dogan

Faculty Scholarship

For several years now, courts and commentators have tussled over the question of whether online intermediaries can face liability under trademark law. Because both case law and commentary have largely focused on the threshold question of "trademark use, " we know little about what specific behavior will subject intermediaries to liability and what remedies might follow. This Essay takes some preliminary steps toward addressing those questions.

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Fighting Antibiotic Resistance: Marrying New Financial Incentives To Meeting Public Health Goals, Aaron S. Kesselheim, Kevin Outterson Jan 2010

Fighting Antibiotic Resistance: Marrying New Financial Incentives To Meeting Public Health Goals, Aaron S. Kesselheim, Kevin Outterson

Faculty Scholarship

The world faces a worsening public health crisis: A growing number of bacteria are resistant to available antibiotics. Yet there are few new antibiotics in the development pipeline to take the place of these increasingly ineffective drugs. We review a number of proposals intended to bolster drug development, including such financial incentives for pharmaceutical manufacturers as extending the effective patent life for new antibiotics. However, such strategies directly conflict with the clear need to reduce unnecessary antibiotic prescriptions and could actually increase prescription use. As an alternative, we recommend a two-prong, "integrated" strategy. This would increase reimbursement for the appropriate, …

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Optimal Antitrust Enforcement, Dynamic Competition, And Changing Economic Conditions, Keith N. Hylton, Haizhen Lin Jan 2010

Optimal Antitrust Enforcement, Dynamic Competition, And Changing Economic Conditions, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

The recent financial crisis and recession provide an opportunity to reexamine the dynamic versus static efficiency tradeoff in antitrust enforcement policy. We examine implications of the optimal antitrust enforcement model when dynamic efficiency is incorporated. The “dynamic enforcement model” examined here provides a positive theory of Section 2 doctrine, some suggestions for modifying enforcement in light of its dynamic costs, and implies antitrust enforcers should put a greater weight on dynamic efficiency during recessions.

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The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper Jan 2010

The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper

Faculty Scholarship

This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, …

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The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff Jan 2010

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff

Faculty Scholarship

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

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Is "Pay-To-Play" Driving Public Pension Fund Activism In Securities Class Actions? An Empirical Study, David H. Webber Jan 2010

Is "Pay-To-Play" Driving Public Pension Fund Activism In Securities Class Actions? An Empirical Study, David H. Webber

Faculty Scholarship

The recent emergence of public pension funds as frequent lead plaintiffs in securities class actions has prompted speculation that the funds’ litigation activism is driven by “pay-to-play”. “Pay-to-play” posits that public pension funds are driven by politician board members to obtain lead plaintiff appointments in securities class actions because of campaign contributions made by plaintiffs’ lawyers to those board members. This paper provides a comprehensive analysis of the securities litigation activity of 111 such funds from the years 2003 through 2006. Three of the paper’s findings cast doubt on the “pay-to-play” theory, including that: (1) politicians and political control negatively …

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Justice And Elegance For Hedgehogs - In Life, Law, And Literature, Linda C. Mcclain Jan 2010

Justice And Elegance For Hedgehogs - In Life, Law, And Literature, Linda C. Mcclain

Faculty Scholarship

At a time when value pluralism and even value polarization seem to be undeniable facts of contemporary life, Ronald Dworkin unrepentantly defends the unity of value. His point of departure is the Greek poet Archilochus’s saying, “The fox knows many things, but the hedgehog knows one big thing,” made famous in liberal philosopher Isaiah Berlin’s essay, The Hedgehog and the Fox. In his forthcoming book, Justice for Hedgehogs, Dworkin argues for the integration of ethics, personal morality, and political morality and contends that law is a branch of political morality that in turn is a branch of morality, broadly understood. …

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The New Price To Play: Are Passive Online Media Users Bound By Terms Of Use, Woodrow Hartzog Jan 2010

The New Price To Play: Are Passive Online Media Users Bound By Terms Of Use, Woodrow Hartzog

Faculty Scholarship

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into "terms of use" contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users' behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and "passive media …

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Sovereignty, Integration, And Tax Avoidance In The European Union: Striking The Proper Balance, Lilian Faulhaber Jan 2010

Sovereignty, Integration, And Tax Avoidance In The European Union: Striking The Proper Balance, Lilian Faulhaber

Faculty Scholarship

As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without …

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Arbitrators And Accuracy, William W. Park Jan 2010

Arbitrators And Accuracy, William W. Park

Faculty Scholarship

An arbitrator’s primary duty remains the delivery of an accurate award, resting on a reasonably ascertainable picture of reality. Litigants wanting only quick or cheap solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration should balance sensitivity toward cost and delay against the parties’ interest in due process and correct decisions. If arbitration loses its moorings as a truth-seeking process, nostalgia for a golden age of simplicity will yield to calls for reinvention of an adjudicatory process aimed at discovering the facts, finding the law, and correctly construing contract language.

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Cctv And Human Rights, Benjamin J. Goold Jan 2010

Cctv And Human Rights, Benjamin J. Goold

All Faculty Publications

This chapter provides a brief overview of the human rights implications of closed circuit television (CCTV) surveillance, and aims to help CCTV managers and operators develop public area surveillance policies and practices that are consistent with a commitment to the protection of individual rights and a respect for civil liberties.

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Towards A Right To Engage In The Fair Transformative Use Of Copyright‑Protected Expression, Graham Reynolds Jan 2010

Towards A Right To Engage In The Fair Transformative Use Of Copyright‑Protected Expression, Graham Reynolds

All Faculty Publications

Networked digital technologies have given Canadians the opportunity to engage with culture in a way that has never before been possible. Empowered and inspired, individuals from Prince George to the Georgian Bay to George Street are rejecting their former role as passive consumers of culture in order to participate in a continuing process of cultural (re)creation, production, and dialogue. One way in which they are doing so is by engaging in the transformative use of existing expression, a type of creative activity in which previously existing expression is reworked for a new purpose, with new interpretations or with a new …

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Electronic Records And The Law Of Evidence In Canada: The Uniform Electronic Evidence Act Twelve Years Later, Luciana Duranti, Corinne M. Rogers, Anthony F. Sheppard Jan 2010

Electronic Records And The Law Of Evidence In Canada: The Uniform Electronic Evidence Act Twelve Years Later, Luciana Duranti, Corinne M. Rogers, Anthony F. Sheppard

All Faculty Publications

This article analyzes the adequacy of The Uniform Electronic Evidence Act, twelve years after its adoption, in dealing with the complexity of the records created, used, or stored in the digital environment. In the face of rapidly changing technology, the authors believe that the nature and characteristics of electronic records cannot be accounted for by simple modifications to the existing law of evidence, but require a new enactment following upon a close collaboration among records professions, legal and law enforcement professions, and the information technology profession. The new rules, comprehensively encompassing issues of relevance, admissibility, and weight of electronic documentary …

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Constitutional Construction And Departmentalism: A Case Study Of The Demise Of The Whig Presidency, Michael J. Gerhardt Jan 2010

Constitutional Construction And Departmentalism: A Case Study Of The Demise Of The Whig Presidency, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt Jan 2010

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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Revolution In Pragmatist Clothing: Nationalizing Workplace Law, Jeffrey M. Hirsch Jan 2010

Revolution In Pragmatist Clothing: Nationalizing Workplace Law, Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

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The Environmental Role Of Agriculture In An Era Of Carbon Caps, Donald Thomas Hornstein Jan 2010

The Environmental Role Of Agriculture In An Era Of Carbon Caps, Donald Thomas Hornstein

Faculty Publications

No abstract provided.

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Identity Scripts & Democratic Deliberation, Holning S. Lau Jan 2010

Identity Scripts & Democratic Deliberation, Holning S. Lau

Faculty Publications

No abstract provided.

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Why The Assertion Of A "Nationalist" Presidency Does Not Support Claims For Expansive Presidential Power, William P. Marshall Jan 2010

Why The Assertion Of A "Nationalist" Presidency Does Not Support Claims For Expansive Presidential Power, William P. Marshall

Faculty Publications

No abstract provided.

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The Danger To Confidential Communications In The Mismatch Between The Fourth Amendment's "Reasonable Expectation Of Privacy" And The Confidentiality Of Evidentiary Privileges, Robert P. Mosteller, Kenneth S. Broun Jan 2010

The Danger To Confidential Communications In The Mismatch Between The Fourth Amendment's "Reasonable Expectation Of Privacy" And The Confidentiality Of Evidentiary Privileges, Robert P. Mosteller, Kenneth S. Broun

Faculty Publications

No abstract provided.

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Why Defense Attorneys Cannot, But Do, Care About Innocence, Robert P. Mosteller Jan 2010

Why Defense Attorneys Cannot, But Do, Care About Innocence, Robert P. Mosteller

Faculty Publications

No abstract provided.

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Archaeological Evidence For Resilience Of Pacific Northwest Salmon Populations And The Socioecological System Over The Last ~7,500 Years, Sarah K. Campbell, Virginia L. Butler Jan 2010

Archaeological Evidence For Resilience Of Pacific Northwest Salmon Populations And The Socioecological System Over The Last ~7,500 Years, Sarah K. Campbell, Virginia L. Butler

Anthropology Faculty Publications and Presentations

Archaeological data on the long history of interaction between indigenous people and salmon have rarely been applied to conservation management. When joined with ethnohistoric records, archaeology provides an alternative conceptual view of the potential for sustainable harvests and can suggest possible social mechanisms for managing human behavior. Review of the ~7,500-year-long fish bone record from two subregions of the Pacific Northwest shows remarkable stability in salmon use. As major changes in the ecological and social system occurred over this lengthy period, persistence in the fishery is not due simply to a lack of perturbation, but rather indicates resilience in the …

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The Isolation Of Viruses Infecting Archaea, Kenneth M. Stedman, Kate Porter, Mike L. Dyall-Smith Jan 2010

The Isolation Of Viruses Infecting Archaea, Kenneth M. Stedman, Kate Porter, Mike L. Dyall-Smith

Biology Faculty Publications and Presentations

A mere 50 viruses of Archaea have been reported to date; these have been investigated mostly by adapting methods used to isolate bacteriophages to the unique growth conditions of their archaeal hosts. The most numerous are viruses of thermophilic Archaea. These viruses have been discovered by screening enrichment cultures and novel isolates from environmental samples for their ability to form halos of growth inhibition, or by using electron microscopy to screen enrichment cultures for virus-like particles. Direct isolation without enrichment has not yet been successful for viruses of extreme thermophiles. On the other hand, most viruses of extreme halophiles, the …

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Effects Of Emulsion Coatings On The Internal Quality And Shelf Life Of Eggs, Damir Dennis Torrico Jan 2010

Effects Of Emulsion Coatings On The Internal Quality And Shelf Life Of Eggs, Damir Dennis Torrico

LSU Master's Theses

Mineral oil (MO) is currently used for coating eggs to preserve quality. Chitosan possesses inherent antimicrobial and film-forming properties. Chitosan coating (CH) is dried much faster than MO when applied on egg shell. Information on synergistic effects of MO:CH emulsion coatings on egg quality does not exist. We developed MO:CH emulsion coatings, and evaluated their effects on internal quality and shelf-life of eggs during storage. In the first study, MO, CH and three emulsions (MO:CH = 75:25, 50:50, and 25:75) were evaluated during 5 weeks at 25°C. Haugh unit (HU) and yolk index values decreased whereas weight loss increased during …

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Enabling Responsible Public Genomics, John M. Conley, Adam K. Doerr, Daniel B. Vorhaus Jan 2010

Enabling Responsible Public Genomics, John M. Conley, Adam K. Doerr, Daniel B. Vorhaus

Faculty Publications

No abstract provided.

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Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao Jan 2010

Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao

All Faculty Publications

This paper was produced for “In Berle’s Footsteps,” a symposium marking the launch of the Adolf A. Berle, Jr. Center on Corporations, Law and Society at the University of Seattle School of Law. It considers the light that the “derivatives revolution” sheds on the theoretical perspectives of Roberto Unger and Adolf Berle. While an unlikely pair, both Unger and Berle focused, in different ways, on the same issues: property, the power associated with property, and the impact of “smashing the atom” of traditional property rights. For Unger, breaking down consolidated property holding at the societal level was a pro-democratic move. …

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The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet Jan 2010

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet

All Faculty Publications

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet “luring” of younger teenagers. This article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. The justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give …

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The Psychology Of Good Character, Alice Woolley, Jocelyn Stacey Jan 2010

The Psychology Of Good Character, Alice Woolley, Jocelyn Stacey

All Faculty Publications

This paper explores the significance of the changing nature of the good character requirement for law society admission in Canada. It posits that good character has shifted from a philosophical concept into a psychological concept, with evidence of past bad acts claimed to be relevant for whether an applicant represents a future risk to the public. This shifting conception of character has, however, been only partial, and the decision-making processes of Canadian law societies have not kept pace with it. Instead, the decision-making process defines character generally and generically, with only occasional emphasis on character as a relevant predictor of …

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Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart Jan 2010

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

All Faculty Publications

Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

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