Law Commons^™

The Boundary-Line Fuction Of The Economic Loss Rule, Vincent R. Johnson

Faculty Articles

No abstract provided.

Half-Full, Half-Empty? Asian American Electoral ‘Presence’ In 2008, Robert S. Chang, Keith Aoki

Faculty Articles

The article discusses the role of Asian Americans in the election of the U.S. President Barack Obama in 2008. It notes that the influence of Asian American in national politics may not significantly affect the next cycles of presidential elections in the U.S. It notes the importance of patience and optimism in envisioning and constructing Asian American electorate.

Viewpoint Diversity And Media Consolidation: An Empirical Study, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and, in turn, the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our Article develops and offers a finely tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorial positions in twenty-five top newspapers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird

Faculty Articles

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed …

Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch

Faculty Articles

In this Article, we examine the effect of judicial ideology on IP case outcomes before the Supreme Court from 1954 to 2006. We find that ideology is a significant determinant of IP cases: the more conservative a justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property. We also find evidence that the relationship is more complex than a purely ideological account would suggest; our results suggest that law matters too. We find that a number of factors that are specific to IP are also consequential. Additionally, we show …

Religious Freedom, Democracy, And International Human Rights, John Witte Jr., M. Christian Green

Faculty Articles

Clearly, religion and freedom do not yet coincide in many countries, however rosy their new constitutional claims are as to religious rights and freedoms for all. Apostasy, Blasphemy, Conversion, Defamation, and Evangelization-these are the new alphabet of religious rights violation in a number of regions around the world. Occurring at the intersection of religion and international human rights, these violations are also challenges to the universality of human rights and the democratic institutions that generate and affirm them.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity, S. I. Strong

Faculty Articles

The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future. …

Are Appointed Judges Strategic Too?, Joanna Shepherd

Faculty Articles

The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually …

Sexual Politics And Social Change, Darren L. Hutchinson

Faculty Articles

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court's ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court's ruling in Lawrence v. Texas. This altered landscape created the ''political opportunity" for the Lawrence ruling and made the opinion relatively "safe. "

Currently, …

Money, Politics, And Impartial Justice, Joanna Shepherd

Faculty Articles

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, …

Voice, Self, And Persona In Legal Writing, Chris Rideout

Faculty Articles

From the author's view, sorting out the complexity of voice—and discussing voice in legal prose—requires a rethinking of who the writer is in legal discourse and, importantly, how that writer is represented in legal prose. It becomes a question not of self expression, but of self-representation and persona. This article will first look at discussions of voice in writing—beginning with what we might mean by voice, then with discussion of personal voice, and then of professional voice. The article then offers another model for looking at voice — a discoursal model — and use that model to reconstruct the idea …

The Path To Profitability: Reinvigorating The Neglected Phase Of Merger Analysis, Jack Kirkwood

Faculty Articles

This article reviews every litigated federal merger case since 1992, when the federal enforcement agencies revised the entry section of their merger guidelines. This review, unprecedented in the literature, shows that courts continue to neglect the entry phase of merger analysis, the phase that addresses whether, if the merged firm raised prices, new firms would enter the market and restore competition. In determining whether new entry is likely, most courts do not ask whether it would be profitable, but whether the market is protected by entry barriers. This “yes or no” approach is flawed, for all markets have some barriers …

Documenting Gender, Dean Spade

Faculty Articles

This article analyzes gender reclassification policies, which determine when an administrative agency will record a change to an individual's gender marker. It’s analysis takes place in three policy contexts: placement in gender-segregated facilities, changing gender marker on IDs, state provision of healthcare that prohibit gender discrimination on the record for those seeking care. It looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification. The article also asks whether the assumed usefulness of gender for identity tracking in the variety of state programs reviewed is well-founded, and it …

The Court Of Appeals For The Fifth Circuit: A Review Of 2007-2008 Insurance Decisions, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided a considerable number of insurance-related controversies between June 2007 and May 2008. Arguably, the most important, comprehensive decisions are discussed-nineteen insurance cases that originate in just five federal district courts. Generally, the Fifth Circuit decided familiar questions of law and fact. More specifically, the following types of procedural and substantive conflicts appear in the nineteen insurance decisions: (1) one case involving the constitutionality of a Texas insurance statute; (2) two federal preemption and removal controversies involving the Employee Retirement Income Security Act (“ERISA”); (3) two disagreements requiring the court of appeals to make …

Is Arbitration Under Attack?: Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Faculty Articles

Courts have become increasingly likely in recent years to find class arbitration waivers in consumer product sales unenforceable due to the lack of incentives for consumers and their attorneys to recover for "low value" claims. This article explores the history of the unconscionability and vindication-of-statutory rights doctrines invoked by those courts. It then analyzes the progression of the class arbitration waiver in the consumer products industry, with emphasis on the third-generation "incentivizing" agreement. This "incentivizing" agreement, if viewed at the time of the purchase agreement, can be mutually beneficial to seller and consumer. Some consumers may wish to forego the …

The Corporate Lawyer's Role In A Contemporary Democracy, Colin P. Marks, Nancy B. Rapoport

Faculty Articles

In this paper, we review the traditional arguments for corporate social responsibility and ask the question of what corporate lawyers should do to help their clients do the right thing ethically. We also set out a test - the technically test -- that highlights when something is usually on the wrong side of the ethical line. (If you have to give legal advice starting with Well, technically..., you're on the wrong side of the line.)

Critical Error: Courts’ Refusal To Recognize Intentional Race Discrimination Findings As Constitutional Facts, Bryan Adamson

Faculty Articles

Critical Error: Courts’ Refusal To Recognize Intentional Race Discrimination Findings as Constitutional Facts raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of …

International Judicial Affairs, Robert Alsdorf

Faculty Articles

The article reports on training programs launched by several countries for their judges. It is reported that the International Judicial Affairs (IJA) Committee was established in the U.S. in the year 2007 to develop opportunities for judges to work with fellow judges in other jurisdictions in mutually beneficial ways. Sierra Leone, as reported, has also carried out reforms in their legal system through their Justice Sector Reform Programme (JSRP).

Calling Your Bluff: How Prosecutors And Defense Attorneys Adapt Pleas Bargaining Strategies To Increased Formalization, Deirdre Bowen

Faculty Articles

This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty-two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases do not fit the "normal crimes" model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys …

Recovering Access: Rethinking The Structure Of Federal Civil Rulemaking, Brooke Coleman

Faculty Articles

Access to the justice system, which is broadly defined in the article as the opportunity to resolve the merits of a legal claim, is declining. One source of this decline is the Civil Rules. This article examines how the institutional failings of the civil rulemaking process have allowed for the production of rules that diminish access. Rule 1 of the Federal Rules of Civil Procedure provides that the Civil Rules should facilitate the "just, speedy, and inexpensive resolution" of legal claims. While the Civil Rules Committee considers this timeworn mandate when drafting the rules, there is no agreement about how …

The Classic Rule Of Faith And Credit, David Engdahl

Faculty Articles

Since the late nineteenth century, orthodox doctrine under the Constitution's Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story's 1833 Commentaries on the Constitution of the United States was essentially sound. This article argues, however, that Justice Story's view had been endorsed by almost no one before him and actually contradicted the "classic rule" of faith and credit, which Justice Story had articulated in 1813. The Supreme Court, moreover, consistently reiterated the "classic rule" despite Justice Story's change of mind, continuing to do so even after his death. By the …

Externships For Millennial Generation Law Students: Bridging The Generation Gap, Susan Mcclellan

Faculty Articles

This article examines the literature about our newest generation of law students, the Millennials, and offers suggestions to help externship faculty work with supervisors and students to avoid potential problems that may arise from generational differences. After reviewing the literature, the article discusses both positive and negative Millennial generation traits and explains how identified generational problems might arise in externship field placements. The article then offers suggestions from psychologists, managerial literature, and the author's experience to help externship directors and faculty work with field supervisors and students to avoid or resolve issues. The article concludes that members of the Millennial …

Trans Law Reform Strategies, Co-Optation, And The Potential For Transformative Change, Dean Spade

Faculty Articles

This paper considers two critiques of how law and rights struggles co-opt social movements and applies them to the example of the emergent law reforms in the area of transgender rights. First, it considers the limitations of the discrimination principle. Second, it looks at the emergent critique of "nonprofitization." Examining how the focus on formal legal equality and the growth of non-profit formations that centralize the concerns and experiences of white and upper class people have impacted gay and lesbian rights work, the paper suggests that these avenues present dangers to creating meaningful transformation of conditions facing trans population, including …

Environmental Impact Assessment In Post-Colonial Societies: Reflections On The Proposed Expansion Of The Panama Canal, Carmen Gonzalez

Faculty Articles

Post-colonial societies endowed with abundant natural resources often under-perform economically when these resources are exploited as economic enclaves lacking significant linkages to other sectors of the economy. The Panama Canal, a symbol of Panamanian identity and a reminder of Panama's lengthy colonial history, has historically functioned as an economic enclave akin to the mineral extraction and industrial agriculture enclaves prevalent throughout the developing world. Based on a case study of the contentious decision to expand the Panama Canal, this article examines the ways in which the colonial legacy distorts the development planning process, and discusses strategies that might be deployed …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Texas federal courts have continued to narrow the application of Texas securities laws. The Fifth Circuit applied the federal class action preemption test of Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) after consolidation in federal court, but permitted unconsolidated state actions to continue unpreempted. The Fifth Circuit also determined that the stringent federal pleading rules apply to state law actions filed in federal court. The Southern District of Texas narrowed aider and abetter liability in the secondary market by imposing a privity requirement for the primary perpetrator under the Texas Securities Act (“TSA”) and requiring a duty to disclose …

Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang

Faculty Articles

In this essay, the authors offer an alternative rationale for amicus practice. This rationale emerges from thier experience working on a brief in support of marriage equality that sixty-three Asian American organizations endorsed. They found that an amicus brief can be an effective tool to engage and educate community-based organizations and their constituencies, thereby helping to advance social justice issues. Their story also illustrates how amicus practice can be used to organize communities around a legal issue and to democratize the courts. In this way, even if the effect of amicus briefs on litigation outcomes may be marginal, the process …

Sharing Stories: Narrative Lawyering In Bench Trials, Paul Holland

Faculty Articles

Narrative lawyering theorists have demonstrated the ways in which the dynamics of stories affect the way lawyers deliver and jurors receive messages within trial. However, relatively little attention has been paid to the distinctive ways in which stories are developed in bench trials. Examining three roughly contemporaneous bench trials, this Article illuminates how this trial format requires lawyers to be both performers and audience, alternating roles frequently, sometimes within the span of a breath or a gesture. The availability of feedback to the lawyer and the possibility of direct intervention by the fact-finder produce a stark contrast to what lawyers …

How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian Halliburton

Faculty Articles

This article seeks for the very first time to inform that debate with a notion of property as an essential aspect of human identity in a "mash-up of sorts that might be called Fourth Amendment jurisprudence meets the Radinesque Property of Personhood. Using an expanded version of the notion of property developed by Professor Margaret Radin in her pioneering work Property and Personhood, the Fourth Amendment must contend with the social reality that some aspects of "ownership" or entitlement to property, and some level of vindication of those interests, are essential to the formation and viability of complete human beings. …

Knocked Down Again: An East L.A. Story On The Geography Of Color And Colors, Steven W. Bender

Faculty Articles

The article discusses the history of struggle of Latin Americans and the legacy of gang violence in East Los Angeles, California. The author states that the positive thing about the place is the closeness of the community and families. However, the 2000 Census states that ninety-seven percent of the city's population is Latin American with about a quarter living below poverty line. Moreover, sociologists consider gang warfare as a defense of turf marked by defined geographic boundaries.

Marks Of Rectitude, Margaret Chon

Faculty Articles

Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely …