Law Commons^™

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 …

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 …

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 …

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 …

A Tragedy Of The Commons: Property Rights Issues In Shanghai Historic Residences, Kara Phillips, Amy Sommers

Faculty Articles

This article explores the tensions between China’s newly privatized model of urban housing ownership and its socialist foundations. Through a combination of interviews and local research, the authors investigate the evolution of property ownership in Shanghai’s architecturally-distinctive stock of historic housing, encompassing various architectural periods and styles (including leading examples of Art Deco), which have gone through periods of private ownership (pre-1949), gradual socialization (1949-1965), militant squatting and occupation (1966-1976), and now privatization (1977 to current). Originally single-family residences, many were gerrymandered into multi-family units, in which the original owner/resident was relegated a small portion of space, and the remainder …

International Legal Protection Of Trademarks In China, Robert H. Hu

Faculty Articles

This article addresses major trademark-related international regimes in which China participates. The article discusses the Chinese obligations under certain international treaties and agreements, both multilateral and bilateral, and use some Chinese court decisions to illustrate how these obligations are fulfilled in its judicial practice. Finally, the article provides an assessment of the effectiveness of these international regimes in China and offers observations on future development in protection through better enforcement. Three arguments are made: (1) International trademark law is taking roots in China; (2) China is taking its international obligations to protect trademarks seriously, and it has achieved much in …

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 …

Trans Politics On A Neoliberal Landscape, Dean Spade

Faculty Articles

These edited Keynote remarks from the Temple Political and Civil Rights Law Review Symposium on transgender law address how questions of law reform strategy relate to critical understandings of neoliberalism. The paper addresses questions of administrative governance, identity documentation, the relationship between law and social movements, and questions of economic and racial justice as applied to transgender politics.

Racial Exhaustion, Darren L. Hutchinson

Faculty Articles

This Article proceeds in three principle parts. Part II explains the role of rhetoric and narratives in shaping commonly held societal beliefs and argues that racial exhaustion discourse functions as a social script that seeks to portray the United States as a post-racist society. Part II then summarizes the basic content of racial exhaustion rhetoric and identifies five common arguments that have endured across historical contexts, which depict race-based remedies as redundant, taxing, injurious to whites, special handouts to blacks, and futile because law cannot alter racial inequality. Next, Part II examines the political rhetoric employed by nineteenth-century Congressional opponents …

Eighth Amendment Gaps: Can Conditions Of Confinement Litigation Benefit From Proportionality Theory, Alexander A. Reinert

Faculty Articles

No abstract provided.

Copyright And Its Rewards, Foreseen And Unforeseen, Justin Hughes

Faculty Articles

Responding to Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 Harv. L. Rev. 1569 (2009)

Satellite Transponders And Free Expression, Monroe Price

Faculty Articles

No abstract provided.

Managing The Risks Of Co2 Sequestration, Amy Hardberger

Faculty Articles

Carbon capture and sequestration (CCS) is an emerging technological development which enables coal to be used while avoiding significant greenhouse-gas emissions. The most effective way to combat the predicted impacts of climate change is to limit carbon dioxide (CO₂) emissions, particularly from coal-burning power plants. CCS is ready to be deployed now but is expensive. Although CCS presents challenges, environmental concerns can be mitigated through careful project planning and execution. If the current administration successfully passes and funds a climate bill, CCS will achieve the incentive needed for commercialization.

There are several risks associated with CCS. Some of the most …

Secrecy And Democratic Decisions, Mark A. Chinen

Faculty Articles

Secrecy to protect intelligence sources and methods appears often in the nation's discourse about controversial national security matters. Often it is asked whether such secrecy is consistent with the nation's democratic principles and processes. This article argues such principles and processes provide a framework through which we try to answer questions about secrecy and indeed legitimate them, but are often too broad to provide definitive guidance in specific cases. At the same time, the sources and methods argument itself is overbroad because of the nature of the sources and methods themselves; the tentative nature of intelligence assessments derived from those …

Crossover, Richard Delgado

Faculty Articles

Should minority writers aim for a "crossover" audience of mainstream (white) readers or write mainly for a circle of readers like themselves, viz., minorities or people of color? Despite the attractions of achieving crossover status -- including fame, fortune, and book reviews -- the article argues that writers of color should usually visualize an audience of their peers, that is, readers of color. Writing for a broad audience of mostly white readers risks that the minority writer will adopt topics, language, and approaches that will appeal and ring true to this group. Consciously or unconsciously the writer may pull his …

The Texas School Finance Litigation Saga: Great Progress, Then Near Death By A Thousand Cuts, Albert H. Kauffman

Faculty Articles

The Texas Legislature’s system for financing Texas schools is significantly more equitable after Edgewood v. Kirby. Edgewood I and Edgewood II effectively forced the legislature to improve the finance system. However, the rulings in the first two Edgewood cases have been whittled away by the last four Edgewood decisions.. As a result, courts now approach fundamental issues, legislative power, and the relationship between them differently.

The Edgewood v. Kirby legacy still improves the equity and adequacy of Texas’s public education finance system. This legacy is expanded upon with observations regarding long term impacts of the Texas school finance litigation saga.

Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, And The Fourth Amendment, Dora W. Klein

Faculty Articles

Involuntary medical treatment potentially compromises several individual constitutional interests. However, like all individual constitutional rights, rights under both the Due Process Clause and the Fourth Amendment can be outweighed by sufficiently important governmental interests.

To determine whether involuntary medical treatment violates the Due Process Clause, courts ask whether the government’s interest that the treatment advances is important enough to justify compromising the individual’s interest in making an autonomous decision to refuse medical treatment. Involuntary treatment must also be medically appropriate, but any physical harms that the treatment might cause are not balanced directly against the government’s interest.

When the government …

New Legal Rights In The Legal System Of The United States Of America, Roberto Rosas, Bill Piatt

Faculty Articles

What new rights does the American legal system offer at the start of the 21st century? This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of 7 new rights created by state and federal laws. The new legal rights in the United States legal system discussed in this article include the following: 1) The right …

In Memoriam: The Honorable Judge Philip S. Figa (1951-2008), Ramona L. Lampley

Faculty Articles

Judge Phillip S. Figa lived a life that is rich in consequence, and our country is a better place because of his labors. President George W. Bush nominated Judge Figa to the United States District Court for the District of Colorado. The nomination "breezed" through the Senate, and confirmation occurred in October 2003. Attached to his reading glasses case, on his judicial bench, Judge Figa kept a list of five simple principles.

That he gave himself a constant reminder of these principles as he sat on the bench shows his resolve to fulfill those expectations himself. Judge Figa was extremely …

Judge Wayne Justice: A Life Of Human Dignity And Refractory Mules, Albert H. Kauffman

Faculty Articles

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

Profits Above The Law: China’S Melamine Tainted Milk Incident, Chenglin Liu

Faculty Articles

There are fundamental flaws within China’s food safety regulatory regime that permeate both its supervision system and governing laws. This is especially prevalent within the market structure in the dairy industry. The government continues to fail in regulating the chaotic market forcing competitors to internalize costs, which has resulted in melamine tainted milk.

This tainted milk scandal has resulted in the death of thousands of infants in a number of Asian countries. The scandal was concealed by the Sanlu Group and local government for fear of bad publicity and loss of profits.

The Chinese government should search for a new …

Destroyed Community Property, Damaged Persons, And Insurers’ Duty To Indemnify Innocent Spouses And Other Co-Insured Fiduciaries: An Attempt To Harmonize Conflicting Federal And State Courts’ Declaratory Judgments, Willy E. Rice

Faculty Articles

Perhaps because of habit or a strong aversion to risks, consumers purchase a considerable amount of insurance generally, and consumers purchase property, indemnity, and liability insurance in particular. Typically, national property and casualty insurers sell property, indemnity, and liability insurance contracts. As a result, those insurers sales and revenues increase from year to year. At the dawn of the 21st century, foreign property and casualty insurers are realizing similar successes.

It is expected that anxious or prudent consumers would insure themselves and their various property interests against strangers, strange events, and perils over which consumers have little control or influence. …

Constitution On Ice: A Report On Immigration Home Raid Operations, Bess Chiu, Lynly Egyes, Peter L. Markowitz, Jaya Vasandani

Faculty Articles

No abstract provided.

The Chapter 13 Estate And Its Discontents, David G. Carlson

Faculty Articles

Thirty years after the enactment of the Bankruptcy Code, the courts have yet to agree on a theory of the bankruptcy estate in Chapter 13 cases. This is not the fault of the courts. The Bankruptcy Code is contradictory as to the composition of the chapter 13 estate. This article selects one of four possible theories and defends it as the one that does the least violence to the plain meaning of the Bankruptcy Code.

This theory is referred to in this article as the "Divestment Theory," because it holds that, upon confirmation of a chapter 13 plan, the debtor …

From The Chair, Lela P. Love

Faculty Articles

No abstract provided.

From The Chair, Lela P. Love

Faculty Articles

No abstract provided.

Law Lags Behind: Foia And Affirmative Disclosure Of Information, Michael Herz

Faculty Articles

No abstract provided.

“Playing Chicken": An Instant History Of The Battle Over Exceptions To Client Confidentiality, Michael S. Ariens

Faculty Articles

The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Client Confidentiality, is to offer a pointillist history of the recent battles between the ABA and the federal government concerning 1) when lawyers may or must disclose client confidences, and 2) claims that the federal government is attacking the attorney-client privilege. In doing so, I hope to explain how this battle is representative of the current drift in the American legal profession.

After the Introduction, the essay unfolds as follows: Section II traces the ABA’s often schizophrenic understanding of the duty of confidentiality and …

Federal Rules Update: Amendments To The Federal Rules Of Procedure And Evidence, David A. Schlueter

Faculty Articles

In a very unusual step, Congress enacted Federal Rule of Evidence 502. This rule deals with the attorney-client and work product privileges. The proposal for this rule was driven primarily by the concern over rising litigation costs associated with discovery, especially electronic discovery. Experience had demonstrated that in complex litigation cases lawyers spend considerable time and effort to preserve privileged documents. If a privileged document is mistakenly produced, there is a risk that a court would find subject matter waiver, not only in the case at bar, but in other cases as well.

The new rule became effective on September …

Federal Rules Update: Technology-Related Rules, David A. Schlueter

Faculty Articles

In June 2009, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number of technology-related rules of criminal procedure. Criminal Rule 1 would state that the terms “telephone,” “telephonic,” or “telephonically” mean any form or live electronic voice communication. Rule 3 would allow officers to submit a complaint and supporting material electronically. Changes to Rule 4 would address electronically processed and submitted arrest warrants. Proposed new Rule 4.1 would permit magistrate judges to consider information presented electronically in deciding whether to issue a warrant or summons or approve a complaint. The amendment …