Law Commons^™

Swamp Swaps: The "Second Nature" Of Wetlands, Fred P. Bosselman

All Faculty Scholarship

No abstract provided.

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Competition Law And The Institutional Embeddedness Of Economics, David J. Gerber

All Faculty Scholarship

Transnational debates about the role of economics in competition law have paid relatively little systematic attention to the embeddedness of economics in institutions. They typically proceed as if embeddedness were not an issue. The assumption often appears to be that economics looks, acts and functions in the same way wherever it is applied. This assumption is frequently the basis for claims supporting increased use of economics in competition law systems around the world.

This article examines that assumption and argues that the institutional embeddedness of economics needs to be taken into account when we wish to evaluate and analyze the …

Perpetual Property, Sarah K. Harding

All Faculty Scholarship

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, …

Changing Expectations For Board Oversight Of Healthcare Quality: The Emerging Paradigm, Valerie Gutmann Koch

All Faculty Scholarship

Within healthcare institutions, leadership is an essential driver of expectations, performance, and culture. Yet boards of directors traditionally played a limited role in overseeing healthcare quality, providing final approval of credentialing decisions but deferring to the medical staff to set standards for the institution. Case law and standards provide little guidance for board performance in verseeing quality of care. Recent developments — the availability of comparative quality data, public reporting, and financial incentives for higher quality — have transformed expectations for board oversight. Enforcement of fraud and abuse laws based on poor quality of care, as well as federal standards …

Conflicts Of Interest In Clinical Trial Recruitment & Enrollment: A Call For Increased Oversight, Valerie Gutmann Koch

All Faculty Scholarship

This White Paper makes several policy recommendations to eliminate or manage the conflicts of interest that arise pursuant to the compensation arrangements between investigators and their institutions with drug and medical device manufacturers as they affect the recruitment and enrollment of human research subjects in clinical trials. The paper seeks to accomplish overall financial neutrality as between treatment and research, so that physicians' decisions regarding inclusion of patients in clinical trials is unaffected by their own financial interests.

Decoding The Dmca Safe Harbors, Edward Lee

All Faculty Scholarship

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several …

Freedom Of The Press 2.0, Edward Lee

All Faculty Scholarship

In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders have increasingly invoked copyright law to regulate directly - indeed, even to prohibit - the manufacture and sale of technology that facilitates the mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable, the expansion of copyright law to regulate - and, in some cases, to prohibit - technologies raises a troubling question. Can the government regulate under copyright law technologies that …

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

All Faculty Scholarship

This Essay examines the possible effect the Supreme Court's landmark Second Amendment ruling in Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to the Framing generation and …

The Paradox Of Public Sector Labor Law, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Of Labor Inspectors And Labors Judges: Chilean Labor Law Enforcement After Pinochet (And What The United States Can Do To Help) (Symposium), César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Pirates Of The Caribbean: The Seiu's Failed Bid In Puerto Rico, César F. Rosado Marzán

All Faculty Scholarship

No abstract provided.

Proving Facts: Belief Versus Probability, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Anticompetitive Trade Remedies: How Antidumping Measures Obstruct Market Competition, Sungjoon Cho

All Faculty Scholarship

Through trade policies such as antidumping remedies, the United States government often protects domestic producers at the expense of market competition. Yet a judicially created antitrust immunity, the Noerr-Pennington doctrine, obstructs the Federal Trade Commission’s antitrust investigations of these trade remedies. This Article argues that judicial and administrative interventions are needed to restore antitrust oversight when implementing trade remedies. This Article does not propose a repealing of the current antidumping statue, an act that would be politically infeasible in the current protectionist atmosphere of Congress. Instead, it takes a more modest yet realistic stance: antidumping remedies must be sanitized by …

Ambiguity, Ambivalence, And Awakening: A South Asian Becoming 'Critically' Aware Of Race In America, Vinay Harpalani

All Faculty Scholarship

"Ambiguity, Ambivalence, and Awakening: A South Asian Becoming 'Critically' Aware of Race in America" was the winner of the Angela Harris Award for Outstanding Student Writing at the Critical Race Theory 20 Conference. It is my critical race autobiography, where I describe my experiences growing up as a South Asian American -- a racially ambiguous figure -- during the implementation of school desegregation in New Castle County, Delaware. I relay some of my racial encounters in elementary and high school, and then discuss my undergraduate years at the University of Delaware; my graduate school education at the University of Pennsylvania; …

Multiculturalism And The Bretton Woods Institutions, Bartram Brown

All Faculty Scholarship

No abstract provided.

Not Our Mother's Law School?: A Third-Wave Feminist Study Of Women's Experiences In Law School (With Kelly Hradsky, Kristen Jeschke, Lavonne Meyer & Jill Roberts), Felice J. Batlan, Kelly Hradsky, Kristen Jeschke, Lavonne Meyer, Jill Roberts

All Faculty Scholarship

No abstract provided.

Lewis & Clark Law School Ninth Distinguished Ip Lecture: Developing Defenses In Trademark Law, Graeme Dinwoodie

All Faculty Scholarship

Trademark law contains important limits that place a range of third party conduct beyond the control of the trademark owner. However, I suggest that trademark law would be better served if several of its limits were explicitly conceptualized as defenses to an action for infringement, that is, as rules permitting unauthorized uses of marks even where such uses implicate the affirmative concerns of trademark law and thus support a prima facie cause of action by the trademark owner. To explore why this distinction between limits and defenses matters, I discuss the different nature of the proscription imposed by copyright and …

Transsexual Discrimination: Discrimination "Because Of…Sex", Tracy Scholnick Gruber

Louis Jackson National Student Writing Competition

No abstract provided.

The Supreme Court's Decision In Engquist V. Oregon Department Of Agriculture: Why The Court Should Have Chosen The Scalpel Instead Of The Meat-Axe, Chris Cavenave

Louis Jackson National Student Writing Competition

No abstract provided.

Transgender Teachers As Role Models For A Tolerant Society: The Impact Of Societal Views And Their Influence On Employment Anti-Discrimination Laws, Susannah L. Ashton

Louis Jackson National Student Writing Competition

This paper discusses the judicial and statutory constructs of the Chambers v. Omaha Girls Club Role Model Rule,3 which protects the rights of employers to take adverse employment actions against unsuitable role models in certain circumstances, in relation to transgender teachers. It includes an introduction to Gender Identity, a brief discussion of how Title VII’s prohibition on sex discrimination should be interpreted to prohibit discrimination on the basis of gender identity, and a survey of parental and societal responses to the recent coming out of transgender teachers across America. It argues that adverse action taken against transgender teachers on the …

The Genetic Information Non-Discrimination Act: Protecting Privacy And Ensuring Fairness In Health Insurance And Employment Practices, Melissa Beyer

Louis Jackson National Student Writing Competition

Almost two centuries ago, Thomas Jefferson, one of this country’s foremost scientists and original thinkers, wrote, ‘[L]aws and institutions must go hand in hand with the progress of the human mind. As . . . new discoveries are made [and] new truths disclosed...institutions must advance also, and keep pace with the time.’ In this age of genetic breakthroughs, it is essential that our laws catch up with science. We can’t afford to take one step forward in science but two steps backward in civil rights. Our laws must specify, clearly and unambiguously, how genetic information may be used and how …