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Articles 1 - 22 of 22
Full-Text Articles in Law
Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam E. Gilles
Opting Out Of Liability: The Forthcoming, Near-Total Demise Of The Modern Class Action, Myriam E. Gilles
Articles
It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term "collective action waivers" - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer …
Size Matters (Or Should) In Copyright Law, Justin Hughes
Size Matters (Or Should) In Copyright Law, Justin Hughes
Articles
American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.
This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …
Trusting Trustees: Fiduciary Duties And The Limits Of Default Rules, Melanie B. Leslie
Trusting Trustees: Fiduciary Duties And The Limits Of Default Rules, Melanie B. Leslie
Articles
No abstract provided.
Robert Dahl's How Democratic Is The American Constitution: An Introduction, With Notes On The Electorial College, Michael Herz
Robert Dahl's How Democratic Is The American Constitution: An Introduction, With Notes On The Electorial College, Michael Herz
Articles
No abstract provided.
Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright
Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron J. Wright
Articles
No abstract provided.
Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S., Malvina Halberstam
Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S., Malvina Halberstam
Articles
No abstract provided.
Ethical Issues In Asbestos Litigation, Lester Brickman
Ethical Issues In Asbestos Litigation, Lester Brickman
Articles
Asbestos litigation has given rise to over 50,000,000 claims against 8400 former producers, distributors, installers and sellers of asbestos-containing products. To date, 850,000 claimants have sought compensation, costing businesses and insurance companies over $70 billion and resulting in more than 70 bankruptcies. Over 100,000 deaths are attributable to asbestos exposure with an additional 40,000 deaths anticipated over the next 30 years. Despite the significance of the ethical issues generated by the processes of acquiring, pressing and settling the most massive litigation in history, the legal literature is substantially devoid of any such discussion. One possible reason for this paucity of …
An Analysis Of The Financial Impact Of S. 852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman
An Analysis Of The Financial Impact Of S. 852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman
Articles
Nearly 30 years ago, the first of a series of bills to remove asbestos litigation from the tort system by creating an industry-funded mechanism to administratively pay asbestos claims was introduced into Congress. The need for a legislative fix of asbestos litigation has long been manifest. After many unsuccessful efforts to resolve the asbestos litigation crisis, the Senate is poised to take up consideration of S.852, The Fairness In Asbestos Injury Resolution Act of 2005. This essay is a preliminary effort to present some context for discussion of certain aspects of S.852 and to estimate the costs that may be …
Authority: An Hommage To Jacques Derrida And Mary Quaintance, Arthur J. Jacobson
Authority: An Hommage To Jacques Derrida And Mary Quaintance, Arthur J. Jacobson
Articles
This essay, in a symposium celebrating the publication 25 years ago of Jacques Derrida's "Force of Law: The 'Mystical Foundation of Authority,'" traces the themes of that work through the struggle between Derrida and his translator, Mary Quaintance, for authority over the translation. In the end, neither wins the struggle: Authorship of the translation - authority - must be ceded to a third. Derrida reacts to this loss of authority by signing the translation, taking responsibility for the translation even when it is the product of forces beyond his control and of decisions he only imperfectly understands. He thus enacts …
20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg
20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg
Articles
This paper was offered as the keynote address at a conference in April of 2004 at the Cardozo Law School upon the 20th anniversary of the publication of Richard Weisberg's The Failure of the Word: the Protagonist as Lawyer in Modern Fiction (New Haven: Yale U Press, 1984). Weisberg first gives an account of the critical reception of his book, both in literary and legal circles and then situates the book - via a reading of Derrida's Force of Law - as inevitably troubling both to liberal readers such as Brook Thomas and more conservative ones such as Richard Posner. …
Derrida's Ethical Turn And America: Looking Back From The Crossroads Of Global Terrorism And The Enlightenment, Michel Rosenfeld
Derrida's Ethical Turn And America: Looking Back From The Crossroads Of Global Terrorism And The Enlightenment, Michel Rosenfeld
Articles
Derrida has denied that he has taken an ethical turn in the 80's and 90's. This article argues, however, that Derrida's deconstruction of the ethical implications of major moral, social or political issues, such as law and justice, friendship, hospitality, forgiveness, the death penalty and most recently global terrorism, does result in an ethical turn. This turn leads Derrida to articulate an ethics of difference which focuses on diversity and the other, and America as compared to Europe stands for greater diversity and looms as Derrida's and Europe's "other." In contrast to Derrida's America is Habermas's Europe, his Kantian ethics …
Transcript Of Weapons Of Mass Destruction, National Security, And A Free Press: Seminal Issues As Viewed Through The Lens Of The Progressive Case, David Rudenstine, James R. Schlesinger, Norman Dorsen, Robert E. Cattanach, Brady Williamson, Frank Tuerkheimer, Howard Morland, Gary Milhollin, Anthony Lewis
Transcript Of Weapons Of Mass Destruction, National Security, And A Free Press: Seminal Issues As Viewed Through The Lens Of The Progressive Case, David Rudenstine, James R. Schlesinger, Norman Dorsen, Robert E. Cattanach, Brady Williamson, Frank Tuerkheimer, Howard Morland, Gary Milhollin, Anthony Lewis
Articles
No abstract provided.
Envy And Outsider Trading: The Case Of Martha Stewart, Jeanne L. Schroeder
Envy And Outsider Trading: The Case Of Martha Stewart, Jeanne L. Schroeder
Articles
No abstract provided.
Rulemaking, Michael Herz
Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk
Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk
Articles
Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works - while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property …
Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam
Articles
No abstract provided.
Failure Of The Word: The Rise Of Law And Literature, Arthur J. Jacobson
Failure Of The Word: The Rise Of Law And Literature, Arthur J. Jacobson
Articles
No abstract provided.
Introduction: Un Cygne Noir, Peter Goodrich
J.D., Peter Goodrich
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz
Articles
No abstract provided.
Progressive Consumption Taxes, Mitchell L. Engler
Progressive Consumption Taxes, Mitchell L. Engler
Articles
Recent intellectual and political forces have moved the consumption tax to the forefront of tax policy debate. Since traditional flat-rate consumption taxes like the VAT raise serious distributional concerns, tax scholars have responded with innovative progressive consumption taxes. Two such taxes - the Hybrid Approach and the X-tax - were independently analyzed in a recent symposium on fundamental tax reform. These two proposals contain striking similarities. Both would tax individuals at progressive rates on their wages, with a separate tax on consumption less wages. Important differences exist, though, regarding the latter tax. The Hybrid Approach would impose such tax on …
Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok
Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok
Articles
No abstract provided.