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Articles 1 - 6 of 6
Full-Text Articles in Law
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
All Faculty Scholarship
In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …
The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin
The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin
All Faculty Scholarship
The proposed Arbitration Fairness Act (AFA) would prohibit all pre-dispute agreements to arbitrate in employment, consumer and franchise contracts. Although changes in the ideological composition of Congress mean that the AFA has little chance of enactment in the foreseeable future, mini-AFAs have been enacted banning pre-dispute arbitration agreements as applied to sexual harassment claims by employees of defense contractors and whistleblower claims by employees in the securities and commodities industries. This article charts a middle ground between those who would ban pre-dispute arbitration mandates in employment contracts completely and those who would leave them unregulated. After surveying the empirical evidence …
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …
Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner
Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner
All Faculty Scholarship
Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany …
A Tea Party At The Hague?, Stephen B. Burbank
A Tea Party At The Hague?, Stephen B. Burbank
All Faculty Scholarship
In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States. …
The Machinery Of Criminal Justice, Stephanos Bibas
The Machinery Of Criminal Justice, Stephanos Bibas
All Faculty Scholarship
Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …