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Articles 31 - 41 of 41
Full-Text Articles in Law
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Faculty Publications
A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.
How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande
Faculty Publications
This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.This article provides background …
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Faculty Publications
Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …
Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz
Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz
Faculty Publications
Arbitration is private but not secret. This truism regarding arbitration seems contradictory and nonsensical. However, common understandings of privacy in arbitration often lull individuals into assuming personal information revealed in arbitration may not become public. They assume privacy and confidentiality are synonymous. The reality is that arbitration is private but not necessarily confidential, or secret. This is the privacy paradox: it defies common conceptions of arbitration's secrecy, but is nonetheless true. This paradox is problematic because it leads to shortsighted contracting and simplistic assumptions about arbitral justice. Moreover, it may foster injustice when repeat players unduly benefit from unpublished awards …
The Model Federal Sentencing Guidelines Project: Sentencing Factors Applicable To All Offense Types, Model Sentencing Guidelines §3.1 - 3.6, Frank O. Bowman Iii
The Model Federal Sentencing Guidelines Project: Sentencing Factors Applicable To All Offense Types, Model Sentencing Guidelines §3.1 - 3.6, Frank O. Bowman Iii
Faculty Publications
This Article is the ninth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines.
The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben
The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben
Faculty Publications
The elective branches get most of the attention when we think about democracy. But it's important to remember that one of the things that a democratic government provides is a number of structures by which disputes may be resolved peacefully. Indeed, voting itself is one way of resolving conflict at a societal level. In the United States, courts historically have been the starting point for the resolution of individual, and sometimes social, disputes. Courts would seem to exude a great deal of democratic legitimacy, but why, and under what conditions? And what about other methods of dispute resolution: How do …
Regulating The Business Of Insurance: Federalism In An Age Of Difficult Risk, Robert H. Jerry Ii, Steven E. Roberts
Regulating The Business Of Insurance: Federalism In An Age Of Difficult Risk, Robert H. Jerry Ii, Steven E. Roberts
Faculty Publications
Natural disasters and terrorism events of a massive scale are "difficult risks." They are difficult (or, if large enough, impossible) to insure, and they present enormous risk-management challenges. Indeed, we are now in an era when difficult risks are the dominant feature of the risk-management landscape. These kinds of risks are inevitably multi-jurisdictional in nature, and managing them effectively requires a cohesive, comprehensive national catastrophe policy involving ex ante prevention and mitigation measures, effective risk allocation through insurance mechanisms, and ex post victim-compensation strategies. Although our nation is not yet close to establishing a much-needed and increasingly discussed national catastrophe …
The Model Federal Sentencing Guidelines Project: A Simplified Sentencing Grid, Model Sentencing Guidelines §1.1, Frank O. Bowman Iii
The Model Federal Sentencing Guidelines Project: A Simplified Sentencing Grid, Model Sentencing Guidelines §1.1, Frank O. Bowman Iii
Faculty Publications
This Article is the first of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines", available on SSRN at http://ssrn.com/abstract=927929.
The Ambiguous Meaning Of Human Conception, Philip G. Peters Jr.
The Ambiguous Meaning Of Human Conception, Philip G. Peters Jr.
Faculty Publications
Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no "moment" of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point …
Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben
Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben
Faculty Publications
Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Faculty Publications
In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …