Law Commons^™

Independent External Review Of Health Maintenance Organizations' Medical-Necessity Decisions, Wendy K. Mariner

Faculty Scholarship

States may have more freedom to regulate the practices of managed-care organizations than many observers previously believed. In the absence of congressional action on the federal Bipartisan Patient Protection Act, the primary source of patient-protection legislation remains at the state level. Nevertheless, the federal Employee Retirement Income Security Act (ERISA) of 19742restricts state regulation of health maintenance organizations (HMOs) that serve private employee group health plans. On June 20, 2002, the U.S. Supreme Court, in Rush Prudential HMO, Inc. v. Moran, upheld an Illinois state law that requires binding independent external review when an HMO disagrees with the …

The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.

Brief Of Keith N. Hylton As Amicus Curiae In Support Of The Respondents In State Farm Mutual Automobile Insurance Company, Petitioner V. Curtis B. Campbell And Inez Preece Campbell, Respondents, Keith N. Hylton

Faculty Scholarship

Virtually all courts accept the view that high punitive damage awards are appropriate in instances where the defendant's harmful conduct is unlikely to lead to liability. See, e.g., BMW of N. Am. Inc. v. Gore, 517 U.S. 559, 582 (1996). The Utah Supreme Court reinstated the $145 million punitive damage award in this case in part on the ground that "State Farm's actions, because of their clandestine nature, will be punished at most in one out of every 50,000 cases as a matter of statistical probability." Pet App. 30a. A central issue of this case is whether the Utah Supreme …

Conservative Or Constitutionalist?, Gary S. Lawson

Faculty Scholarship

The persistence of the question posed by the editors of this journal demonstrates that legal conservatives have an identity crisis. In large measure, that crisis is an artifact of the ambiguity in the term "legal conservative." I use the term roughly to mean someone who believes in a variant of original meaning for interpreting constitutions and statutes' and who views the common law as a device for securing social coordination within a spontaneous order-all overlaid with a strong respect for the Anglo-American, Rule of Law tradition. As definitions go, this is pretty imprecise. There is no single meaning for original …

Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher

Faculty Scholarship

Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon

Faculty Scholarship

Professor Lunney's piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney's arguments within the future of Intellectual Property scholarship as a whole.

An Asymmetric Information Model Of Litigation, Keith N. Hylton

Faculty Scholarship

This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than 50 percent. I apply the model and its simulation results …

Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann

Faculty Scholarship

Privatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information …

Privacy And The Post-September 11 Immigration Detainees: The Wrong Way To A Right (And Other Wrongs), Sadiq Reza

Faculty Scholarship

In forthcoming work, I argue that this common-law privacy right should indeed attach to individuals arrested for or suspected of crime.9 I also argue that support for the right exists in a variety of judicial, statutory, and other sources, and that legislation to formally protect the right is warranted and constitutional. The reasoning is simple: being publicly named in connection with criminal allegations is stigmatizing, and the resultant personal harm-social, professional, emotional, other-lasts, and is difficult to justify when it is visited upon someone who is acquitted of the charges or against whom the charges are dismissed. Equally troubling is …

The Aftermath Of September 11, 2001: The Targeting Of Arabs And Muslims In America, Susan M. Akram

Faculty Scholarship

THE DEMONIZING OF ARABS AND Muslims in America began well before the terrible tragedy of September 11, 2001. It can be traced to deliberate mythmaking by film and media,² stereotyping as part of conscious strategy of 'experts' and polemicists on the Middle East,³ the selling of a foreign policy agenda by US government officials and groups seeking to affect that agenda,⁴ and a public susceptible to images identifying the unwelcome 'other* in its midst.⁵ Bearing the brunt of these factors are Arab and Muslim non-citizens in this country. A series of government laws and policies since …

Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon

Scholarship Chronologically

Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.

When Should We Prefer Tort Law To Environmental Regulation?, Keith N. Hylton

Faculty Scholarship

There are two broad models of regulation: statutory schemes carried out by administrative agencies with the help of public enforcement agents, and highly discretionary common law rules developed over time through litigation. Environmental regulation is dominated by the first model, with relatively little of it done through litigation of tort claims. The reason may be largely historical: tort law has always been viewed as local in design and impact, while environmental law has always had a global aim. But it need not be this way. More than anything, tort law has been flexible, and thus capable of responding to new …

Welfare Implications Of Costly Litigation Under Strict Liability, Keith N. Hylton

Faculty Scholarship

This article examines a model of strict liability with costly litigation and presents conditions under which (1) potential injurers take optimal precautions, (2) increasing the cost of litigation enhances precaution and social welfare, (3) the optimal level of liability exceeds the compensatory level, and (4) increasing the rate of settlement enhances social welfare. The results have implications for controversies surrounding fee shifting, optimal damage awards (e.g., punitive damages), and the social desirability of settlement. The most striking implication is that fee shifting in favor of prevailing plaintiffs is socially desirable in low-transaction-cost settings.

Are Agreements To Keep Secret Information In Discovery Legal, Illegal Or Something In Between?, Susan P. Koniak

Faculty Scholarship

For at least eight years before the public and government authorities learned of the apparently dangerous combination of Ford Explorer sport utility vehicles ("SUVs") and their Bridgestone/Firestone brand of tires, Firestone had been settling lawsuits involving injuries and deaths caused by their tires failing on Ford SUVs. These settlements included terms requiring the plaintiffs and their lawyers to keep quiet about the settlements and about information learned through discovery, including information that might have alerted the public or the government to just how unsafe the Explorer/Firestone combination actually was. In some cases, these secrecy provisions were reinforced by court protective …

The Law Of Cross-Border Securitization: Lex Juris, Tamar Frankel

Faculty Scholarship

This article discusses the process by which the law of crossborder securitization evolves and becomes uniform. In a former article entitled Cross-Border Securitization: Without Law, but Not Lawless, I posited that "the laws governing cross-border securitization are developed first by decentralized lawmaking 'markets," and then absorbed by centralized lawmaking of communities, large intermediaries, and corporations."¹ I suggested that a cyclical process is involved. New forms of cross-border securitization and new legal issues emerge while old forms and settled issues solidify into rules. This article continues the inquiry. The first part of the article also defines the meaning of a …

The Lawyer As Citizen, James E. Fleming

Faculty Scholarship

The moral schizophrenia of the lawyer-person wrought by the American adversarial system's differentiation of professional morality from personal morality is at once alienating and anesthetizing. Alienating in that it separates a person from her/his actions taken in performing a professional role by attributing responsibility for these actions and their consequences to the role itself rather than to the individual. Anesthetizing in that it permits if not requires a professional to constrict the moral universe inhabited on the job, extruding moral sentiments that she/he otherwise might feel, numbing the moral sense of ordinary personal responsibility.

The Unhappy History Of Civil Rights Legislation, Fifty Years Later, Jack M. Beermann

Faculty Scholarship

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of …

Ruminations On Tenure, Ronald E. Wheeler

Faculty Scholarship

As a newer law librarian having just completed by first year in a non-tenure track position, I often find myself wondering what my professional life would be like if my position were tenure track. After some reflection and discussion with peers, I've formulated the following thoughts on the subject of tenure for academic law librarians.

Infringement Once Removed: The Perils Of Hyperlinking To Infringing Content, Stacey Dogan

Faculty Scholarship

This Article contends that the basic premise of Sony---that context and effect must play a role in evaluating allegations of secondary liability for copyright infringement-has application beyond the isolated case of equipment manufacture. More specifically, I propose a modified Sony framework for evaluating secondary liability for linking to infringing content. While this approach repudiates the strict view of secondary liability in favor of a more nuanced analysis, it stops short of advocating wholesale immunity for linkers. To the contrary, I contend that certain links, like certain acts of direct infringement, threaten copyright law's incentives with few compensating benefits to the …

Hold-Up And Patent Licensing Of Cumulative Innovations With Private Information, James Bessen

Faculty Scholarship

When innovation is cumulative, early patentees hold claims against later innovators. Then potential hold-up may cause prospective second stage innovators to forego investing in R&D. It is sometimes argued that ex ante licensing (before R&D) avoids hold-up. This paper explores ex ante licensing when information about development cost is private. In this case, contracts may not be written ex ante. Moreover, the socially optimal division of profit occurs with weak patents and ex post licensing. Empirical evidence on licensing conforms to a model with private information. In some innovative industries, little ex ante licensing occurs, suggesting hold-up remains a problem.

The Place Of Marriage In Democracy's Formative Project, Linda C. Mcclain

Faculty Scholarship

Shoring up the institution of marriage is a theme in the "mar riage movement" and in recent legislative debates over welfare reform and family policy. One common premise is that strength ening marriage and renewing a "marriage culture" is vital to national health and that the best way for government, at all lev els, to strengthen and support families and to foster the well being of children is to promote and support marriage (Marriage Movement; Bush, 2002) Calls to renew civil society identify marital, two-parent families as foremost among the seedbeds of civic virtue upon which our Nation depends for …

Protecting The Endangered Human: Toward An International Treaty Prohibiting Cloning And Inheritable Alterations, George J. Annas

Faculty Scholarship

We humans tend to worry first about our own happiness, then about our families, then about our communities. In times of great stress, such as war or natural disaster, we may focus temporarily on our country but we rarely think about Earth as a whole or the human species as a whole. This narrow perspective, perhaps best exemplified by the American consumer, has led to the environmental degradation of our planet, a grossly widening gap in living standards between rich and poor people and nations and a scientific research agenda that focuses almost exclusively on the needs and desires of …

Bioterrorism, Public Health, And Civil Liberties, George J. Annas

Faculty Scholarship

The prospect of having to deal with a bioterrorist attack, especially one involving smallpox, has local, state, and federal officials rightly concerned. Before September 11, most procedures for dealing with a bioterrorist attack against the United States were based on fiction. Former President Bill Clinton became engaged in the bioterrorism issue in 1997, after reading Richard Preston's novel The Cobra Event. In Tom Clancy's 1996 Executive Orders, the United States is attacked by terrorists using a strain of Ebola virus that is transmissible through the air. To contain the epidemic, the President declares a state of emergency, orders that …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …

After Orange County: Reforming California Municipal Bankruptcy Law, Frederick Tung

Faculty Scholarship

Because of federal constitutional concerns, a municipal entity may resort to federal bankruptcy protection only with the authorization of its state. Federal law requires that a municipality be "specifically authorized" under state law to file for bankruptcy protection. Existing California law provides fairly broad authorization for its municipalities, but the statute is in need of both technical and substantive revision. After discussing constitutional concerns and surveying other states' approaches to municipal bankruptcy authorization, Professor Tung recommends a system of discretionary access, in which the governor holds discretionary power to approve, disapprove, or condition a municipality's access to bankruptcy.

The Changing Face Of Recognition In International Law: A Case Study Of Tibet, Robert D. Sloane

Faculty Scholarship

The concept of state recognition in public international law has long been mired in a (pejoratively) academic debate between the "declaratory" and "constitutive" schools. This article strives to reappraise and recast recognition through analysis of the history and status of Tibet and its government-in-exile. I argue that, for analytic purposes, we must distinguish three forms of recognition: first, political recognition, the formal acts by which one sovereign recognizes another's claim to statehood or legitimate governance; second, legal recognition, a judgment of recognition based on some set of reasonably objective legal criteria; and third, civil recognition, the force of popular moral …

Lessons From The World Conference Against Racism, Peggy Maisel

Faculty Scholarship

It is difficult to get people to remember, let alone focus on the accomplishments and ongoing challenges that emerged during the United Nations sponsored World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (the WCAR) held just over a year ago in Durban, South Africa. The reason is simple: that conference ended on September 8, 2001, and what we remember about that period is now permanently obscured by what happened just three short days later. But the events of September 11 make it more imperative than ever that we address the evils of racism, racial discrimination, and xenophobia. It …

Amending The Federal Arbitration Act, William W. Park

Faculty Scholarship

Enacted almost a century ago, as a simple procedural device to enforce arbitration in federal courts, the Federal Arbitration Act has now been pressed into service as a body of substantive law that binds state courts as well, requiring that arbitration agreements be enforced on the same footing as other contracts. Several different varieties of arbitration have been squeezed into the tent of an antiquated (although some might say venerable) arbitration statute, which proves ill-suited as an all-terrain vehicle. The laissez-faire court scrutiny appropriate to an international proceeding, between sophisticated business managers with access to competent counsel, may be quite …

Dimensions Of Negligence In Criminal And Tort Law, Kenneth Simons

Faculty Scholarship

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence (unreasonable creation of a risk of harm), a conception that dominates tort law; and cognitive negligence (unreasonable failure to be aware of a risk, either through inadvertence or mistake), a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to …