Digital Commons Network^™

Pretending To Be Liberian And Panamanian; Flags Of Convenience And The Weakening Of The Nation State On The High Seas, Carlos Felipe Llinas Negret

Journal of Maritime Law and Commerce

No abstract provided.

Constitutional Law And Rhetoric, Colin Starger

All Faculty Scholarship

What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project.

When properly grounded, …

Sufficiency, Comprehensiveness Of Healthcare Coverage And Cost-Sharing Arrangements In The Realpolitik Of Health Policy, Govind Persad, Harald Schmidt

Publications

This chapter explores two questions in detail: How should we determine the threshold for costs that individuals are asked to bear through insurance premiums or care-related out-of-pocket costs, including user fees and copayments? and What is an adequate relationship between costs and benefits? This chapter argues that preventing impoverishment is a morally more urgent priority than protecting households against income fluctuations, and that many health insurance plans may not adequately protect individuals from health care costs that threaten to drop their financial status below a decent minimum. A design that places greater emphasis on preventing impoverishment and finances the achievement …

Whistling For The Dog In Affirmative Action, Daria Roithmayr

Publications

No abstract provided.

The Dynamics Of Excessive Force, Daria Roithmayr

Publications

Existing scholarship suggests that police use of excessive force will be greatest in departments with "bad apple" officers or bad top-down incentive structures. This paper proposes an alternative theoretical account to argue that patterns of excessive force dynamically emerge from local interactions among individuals that aggregate to form more global patterns of escalation, contagion, and decay. I focus on two dynamic interactions in particular. First, I argue that excessive force spreads and escalates by way of a self-reinforcing arms race between civilians and officers that intensifies the use of excessive force over time. As officers use excessive force, civilians in …

Health Theater, Govind Persad

Publications

"Security theater" has been defined as an effort to "provide the feeling of security instead of the reality. " The concept of security theater has been discussed in both the popular press and academic literature, but has not yet entered health law. This project suggests that a parallel category of "health theater" picks out a set ofpractices in medical screening and health care delivery that provide a mere simulacrum ofprotection against medical risk, rather than providing genuine medical benefit. Part I summarizes some of the distinctive advantages and disadvantages of health and security theater. Like security theater, health theater frequently …

Taking Patents, Gregory Dolin, Irina D. Manta

All Faculty Scholarship

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …

Shattering The Glass Ceiling In International Adjudication, Nienke Grossman

All Faculty Scholarship

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target …

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

All Faculty Scholarship

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

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 …

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Sovereign Debt Restructuring: A Model-Law Approach, Steven L. Schwarcz

Faculty Scholarship

The existing contractual framework for sovereign debt restructuring is sorely inadequate. Whether or not their fault, nations sometimes take on debt burdens that become unsustainable. Until resolved, the resulting sovereign debt problem hurts not only those nations (such as Greece) but also their citizens, their creditors, and—by posing serious systemic risks to the international financial system—the wider economic community. The existing contractual framework functions poorly to resolve the problem because it often leaves little alternative between a sovereign debt bailout, which is costly and creates moral hazard, and a default, which raises the specter of systemic financial contagion.

Most observers …

Misalignment: Corporate Risk-Taking And Public Duty, Steven L. Schwarcz

Faculty Scholarship

This article argues for a “public governance duty” to help manage excessive risk-taking by systemically important firms. Although governments worldwide, including the United States, have issued an array of regulations to attempt to curb that risk-taking by aligning managerial and investor interests, those regulations implicitly assume that investors would oppose excessively risky business ventures. That leaves a critical misalignment: because much of the harm from a systemically important firm’s failure would be externalized onto the public, including ordinary citizens impacted by an economic collapse, such a firm can engage in risk-taking ventures with positive expected value to its investors but …

Competing For Refugees: A Market-Based Solution To A Humanitarian Crisis, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The current refugee crisis demands novel legal solutions, and new ways of summoning the political will to implement them. As a matter of national incentives, the goal must be to design mechanisms that discourage countries of origin from creating refugees, and encourage host countries to welcome them. One way to achieve this would be to recognize that persecuted refugee groups have a financial claim against their countries of origin, and that this claim can be traded to host nations in exchange for acceptance. Modifications to the international apparatus would be necessary, but the basic legal elements of this proposal already …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …

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 …

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin Feldman, Mark A. Lemley, Jonathan Masur, Arti K. Rai

Faculty Scholarship

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is …

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Strategic Decision Making In Dual Ptab And District Court Proceedings, Saurabh Vishnubhakat, Arti K. Rai, Jay P. Kesan

Faculty Scholarship

The post-grant review proceedings set up at the U.S. Patent and Trademark Office’s Patent and Trial Appeal Board by the America Invents Act of 2011 have transformed the relationship between Article III patent litigation and the administrative state. Not surprisingly, such dramatic change has itself yielded additional litigation possibilities: Cuozzo Speed Technologies v. Lee, a case addressing divergence between the manner in which the PTAB and Article III courts construe patent claims, will soon be argued at the U.S. Supreme Court.

Of the three major new PTAB proceedings, two have proven to be popular as well as controversial: inter partes …

Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby

Faculty Scholarship

No abstract provided.

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …

Lethality, Public Carry, And Adequate Alternatives, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, James D. Cox, Randall S. Thomas

Faculty Scholarship

Because representative shareholder litigation has been constrained by numerous legal developments, the corporate governance system has developed new mechanisms as alternative means to address managerial agency costs. We posit that recent significant governance developments in the corporate world are the natural consequence of the ineffectiveness and inefficiency of shareholder suits to address certain genre of managerial agency costs. We thus argue that corporate governance responses evolve to fill voids caused by the inability of shareholder suits to monitor and discipline corporate managers.

We further claim that these new governance responses are themselves becoming stronger due in part to the rising …

What Is Gun Control? Direct Burdens Incidental Burdens, And The Boundaries Of The Second Amendment, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

Particularly in places with few recognizable gun control laws, “gun neutral” civil and criminal rules are an important but often-unnoticed basis for the legal regulation of guns. The burdens that these rules impose on the keeping and bearing of arms are at times significant, but they are also incidental, which raises hard questions about the boundaries between constitutional law, regulation, and legally enforceable private ordering. Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace? In the course of addressing these practical …

Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.