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Articles 31 - 60 of 548
Full-Text Articles in Law
Malpractice Reform As A Health Policy Problem, William M. Sage
Malpractice Reform As A Health Policy Problem, William M. Sage
Faculty Scholarship
Calling malpractice reform a "health policy problem" means that we should analyze it in terms of the quality of health care, access to health care, and the cost of health care-the basic health policy triad with which we all are familiar. We immediately recognize patient safety as a health policy problem because it is obviously about quality. We may believe there is so much slack in the health care system that we can make major improvements in patient safety without excessive cost. But ultimately, there are going to be cost-safety tradeoffs, which are also health policy concerns. We tend not …
Reform Of Public Company Disclosure In Europa, Roberta S. Karmel
Reform Of Public Company Disclosure In Europa, Roberta S. Karmel
Faculty Scholarship
No abstract provided.
Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes -- Evaluating Erisa At Age Thirty, Maria O'Brien
Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes -- Evaluating Erisa At Age Thirty, Maria O'Brien
Faculty Scholarship
Book Review of The Employee Retirement Income Security Act of 1974: A Political History by James A. Wooten.
Goeres and the many other recent cases like it10 are remarkable after Mertens and Great West, both for the persistence of the ERISA plaintiff's bar in trying to find ways to obtain make-whole relief in egregious cases and for the continued refusal of Congress to amend ERISA to provide adequate make-whole remedies."11 A patently unjust and inefficient legal regime continues to replicate itself again and again. Conduct that clearly constitutes breach of fiduciary duty, negligent plan administration or worse, …
Should Tort Damages Be Multiplied?, Keith N. Hylton, Thomas J. Miceli
Should Tort Damages Be Multiplied?, Keith N. Hylton, Thomas J. Miceli
Faculty Scholarship
The notion that damages should be multiplied by the reciprocal of the probability of punishment is one of the basic lessons of the law and economics literature. However, the simple l/p" multiplier turns out be inapplicable in the civil damages setting. The multiplier that brings about first-best deterrence must be chosen by striking a balance between the supply of lawsuits and the need to internalize costs. Moreover, given the costs of litigation, a multiplier that minimizes overall social costs (in contrast to achieving first-best deterrence) may need to be set at a level that effectively bars many claims. This article …
The Art Of Indirection, Elizabeth Fajans, Mary R. Falk
The Art Of Indirection, Elizabeth Fajans, Mary R. Falk
Faculty Scholarship
No abstract provided.
Reform Of Public Company Disclosure In Europe, Roberta S. Karmel
Reform Of Public Company Disclosure In Europe, Roberta S. Karmel
Faculty Scholarship
No abstract provided.
Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival
Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival
Faculty Scholarship
The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …
Testimony On The Regulation Of Indian Gaming, Oversight Hearing On Indian Gaming, Before The United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn
Faculty Scholarship
Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.
Dspace, Institutional Repositories And The Open Access Movement: Why Should You Care?, Carol A. Parker
Dspace, Institutional Repositories And The Open Access Movement: Why Should You Care?, Carol A. Parker
Faculty Scholarship
The amount of digital scholarly output grows daily, yet only a small fraction of legal scholarly communication is published in traditional venues such as law reviews and journals. Some of this digital scholarly communication makes it to the Web and becomes a resource often referred to as "gray literature," but this can be a haphazard process at best. The UNM School of Law Library employs DSpace, an open source digital institutional repository, to enable the Law faculty to collect, preserve, index, and distribute their digital work, as well as to provide a community for peer review of works in progress. …
Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super
Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super
Faculty Scholarship
Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.
An Unnatural Disaster: The Aftermath Of Hurricane Katrina, David M. Driesen, Alyson Flournoy, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Carmen G. Gonzalez, David J. Gottlieb, Donald T. Hornstein, Douglas A. Kysar, Thomas O. Mcgarity, Catherine A. O'Neill, Clifford Rechtschaffen, Christopher Schroeder, Sidney Shapiro, Rena I. Steinzor, Joseph P. Tomain, Robert R.M. Verchick, Karen Sokol
An Unnatural Disaster: The Aftermath Of Hurricane Katrina, David M. Driesen, Alyson Flournoy, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Carmen G. Gonzalez, David J. Gottlieb, Donald T. Hornstein, Douglas A. Kysar, Thomas O. Mcgarity, Catherine A. O'Neill, Clifford Rechtschaffen, Christopher Schroeder, Sidney Shapiro, Rena I. Steinzor, Joseph P. Tomain, Robert R.M. Verchick, Karen Sokol
Faculty Scholarship
No abstract provided.
Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green
Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green
Faculty Scholarship
This paper explores the benefits of using mediation in addressing employment discrimination disputes. It highlights the difficulties for those who expect too much out of mediation by expecting it to transform relations while exposing concerns with those who limit mediation's potential by supporting mythical notions about mediators being neutral. The paper suggests that employers develop comprehensive conflict resolution systems and include mediation as a process that is case-specific and focused on the needs of all parties and not the needs of the mediator.
Trademark Assignment With Goodwill: A Concept Whose Time Has Gone, Irene Calboli
Trademark Assignment With Goodwill: A Concept Whose Time Has Gone, Irene Calboli
Faculty Scholarship
Historically, starting from the premise that trademark protection is about consumer welfare, trademark law has required trademarks to be assigned with the goodwill of the business to which they refer, to deter assignees from changing the quality of the marked products. Yet, ever since its adoption, this rule has been hard to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legislative context: trademark goodwill. Additionally, regardless of this rule, trading in trademarks has been a recurrent practice in the business world, and trademark practices have traditionally provided instruments to assist this trade. …
The Aftermath Of Hurricane Katrina, An Unnatural Disaster, Eileen Gauna
The Aftermath Of Hurricane Katrina, An Unnatural Disaster, Eileen Gauna
Faculty Scholarship
This report analyzes key policy decisions, as well as actions and inaction under health, safety, and environmental laws, that could have better protected New Orleans from the effects of Katrina before the hurricane and those that could have improved the emergency response in its wake. In the area of public health, safety, and the environment, the paper explores the implementation of wetlands law and policy, bad decisions regarding the construction and maintenance of the levee system designed to protect New Orleans, pollution prevention and clean-up laws, and energy policy. In the area of emergency response, it reviews policy decisions related …
Digital Vat And Development: D-Vat And D-Velopment, Richard Thompson Ainsworth
Digital Vat And Development: D-Vat And D-Velopment, Richard Thompson Ainsworth
Faculty Scholarship
This article suggests that the time is right for developing countries to consider adopting a comprehensive, fully digital VAT, (complete with certified software and trusted third party intermediaries who could assume all of the taxpayer's VAT responsibilities) within the limited group of enterprises encompassed by the large taxpayer group.
Since the e-commerce revolution began in the 1990's, tax policy discussions in developed economies have enlisted "e-solutions" to streamline consumption tax administration, as well as to resolve technical problems.
Inspiration came from the marketplace. Policy-makers observed widespread, business-initiated e-solutions to consumption tax compliance problems in a wide spectrum of jurisdiction. There …
The Failure Of The Rule Of Law In Cyberspace: Reorienting The Normative Debate On Borders And Territorial Sovereignty, H. Brian Holland
The Failure Of The Rule Of Law In Cyberspace: Reorienting The Normative Debate On Borders And Territorial Sovereignty, H. Brian Holland
Faculty Scholarship
The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace.
Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or indigenous regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the …
Patent Policy Adrift In A Sea Of Anecdote: A Reply To Lichtman, Michael J. Meurer, Craig Allen Nard
Patent Policy Adrift In A Sea Of Anecdote: A Reply To Lichtman, Michael J. Meurer, Craig Allen Nard
Faculty Scholarship
We enjoyed reading and thinking about Doug Lichtman's response to our article on the doctrine of equivalents (DOE), especially his eloquent formulation of the essential policy issues. Apparently, the three of us share roughly the same approach to economic analysis of the DOE. Nevertheless, Lichtman fears we have overestimated the skill of patent attorneys and lost track of the crucial role the DOE plays in augmenting patent scope and bolstering incentives to invent. We write this reply to highlight two largely empirical questions that we disagree about, and explain how these disagreements lead us to very different policy conclusions.
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Faculty Scholarship
The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …
Overenforcement, Alex Stein, Richard Bierschbach
Overenforcement, Alex Stein, Richard Bierschbach
Faculty Scholarship
No abstract provided.
A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein
A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein
Faculty Scholarship
When the U.N. General Assembly adopted the Convention on the Non-Navigational Uses of International Watercourses in 1997, it took a decisive step in recognizing the important role that transboundary ground water resources play in human progress and development. In so doing, it also acknowledged the need to establish principles of law governing this "invisible" but valuable natural resource. Transboundary ground water historically has been neglected in treaties, ignored in projects with international implications, and cursorily misunderstood in much of legal discourse.
While the Convention provides substantial clarification on the status of ground water under international law, it also leaves considerable …
Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard
Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard
Faculty Scholarship
In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …
Terrorism Risk In A Post-9/11 Economy: The Convergence Of Capital Markets, Insurance, And Government Action, Robert J. Rhee
Terrorism Risk In A Post-9/11 Economy: The Convergence Of Capital Markets, Insurance, And Government Action, Robert J. Rhee
Faculty Scholarship
September 11 changed the American economy and the global insurance market. The insurance industry no longer covers terrorism risk for "free." The traditional insurance mechanism alone cannot spread the risk of repeated catastrophic losses. Beyond the Terrorism Risk Insurance Act of 2002 lingers the questions of a longterm solution and government's role therein. Government can assume different roles: reinsurer, wealth (re)distributor, regulator, or a combination thereof. This article suggests that the government should foster a regulatory and tax environment in which the private sector can develop a capital market solution for terrorism risk. Securitization is an alternative to reinsurance and …
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Faculty Scholarship
The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.
In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …
The Perils Of Online Legal Research: A Caveat For Diligent Counsel, J. Thomas Sullivan
The Perils Of Online Legal Research: A Caveat For Diligent Counsel, J. Thomas Sullivan
Faculty Scholarship
Online legal research is emerging as a preferred tool for judges, attorneys, and lawstudents, providing a vast amount ofnearly real-time legal resources at the speed of electronic search. This article analyzes the risk of error associated with the immediacy of online opinion publishing and how the uncertainty ofaccuracy potentially compromises the litigator's ability to provide accurate advice.
From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh
From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh
Faculty Scholarship
Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.
Once we appreciate as much, we can begin by replacing …
The Presidency And The Meaning Of Citizenship, Malinda L. Seymore
The Presidency And The Meaning Of Citizenship, Malinda L. Seymore
Faculty Scholarship
This Article uses the issue of presidential qualification as a vehicle to examine the meaning of citizenship today, arguing that the Natural-Born Citizen Clause perpetuates a second-class citizenship that is inappropriate and inapposite in modern American society. Upon this premise, this Article proposes that a constitutional amendment may be necessary since the argument that the Fourteenth Amendment serves as an implicit repeal of the Natural-Born Citizen Clause has proved historically insufficient. Part II of this Article examines the origins of the constitutional requirement that the President be a "natural born Citizen" and discusses the unsuccessful attempts to amend this requirement. …
Liability For Direct Advertising Of Drugs To Consumers: An Idea Whose Time Has Not Come, Aaron Twerski
Liability For Direct Advertising Of Drugs To Consumers: An Idea Whose Time Has Not Come, Aaron Twerski
Faculty Scholarship
No abstract provided.
Field Marshall Douglas Haig: A Negative Leadership Lesson In Military History, Joshua E. Kastenberg
Field Marshall Douglas Haig: A Negative Leadership Lesson In Military History, Joshua E. Kastenberg
Faculty Scholarship
A very brief analysis of the “bloody mindlessness” leadership trait of Field Marshall Douglas Haig.
Fair Use: Threat Or Threatened?, Wendy J. Gordon
Fair Use: Threat Or Threatened?, Wendy J. Gordon
Faculty Scholarship
Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.
The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.
But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon …
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Faculty Scholarship
No abstract provided.