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Articles 1 - 30 of 45
Full-Text Articles in Law
Market Power And Antitrust Enforcement, John B. Kirkwood
Market Power And Antitrust Enforcement, John B. Kirkwood
Faculty Articles
Antitrust is back on the national agenda. The Democratic Party, leading Senators, progressive organizations, and many scholars are calling for stronger antitrust enforcement. One important step, overlooked in the discussion to date, is to reform how market power — an essential element in most antitrust violations — is determined. At present the very definition of market power is unsettled. While there is widespread agreement that market power is the ability to raise price profitably above the competitive level, there is no consensus on how to determine the competitive level. Moreover, courts virtually never measure market power (or its larger variant, …
Environmental Governance And The Global South, Jeffrey Minneti
Environmental Governance And The Global South, Jeffrey Minneti
Faculty Articles
Over the last several decades, efforts to regulate the environment through traditional public law at national and international levels have stalled. In contrast, private environmental governance has flourished as nongovernmental entities have engaged in standard setting and assessment practices traditionally left to public government. Such entities include the Forest Stewardship Council (FSC) and Rainforest Alliance, both of which are nongovernmental entities that prescribe environmental standards for producers, provide labels and logos for producers that choose to comply with the standards, and maintain compliance through independent audits. The schemes incentivize environmentally responsible products and production processes by linking producers who conform …
Labor Organizing In The Age Of Surveillance, Charlotte Garden
Labor Organizing In The Age Of Surveillance, Charlotte Garden
Faculty Articles
No abstract provided.
Milking The Estate, David R. Hague
Milking The Estate, David R. Hague
Faculty Articles
Recent Chapter 7 bankruptcy cases are exposing a widespread problem. Chapter 7 trustees are retaining their own law firms to represent them and then in clear breach of their fiduciary duties to creditors-requesting illegitimate legal fees to be paid by the estate. This practice is immoral and particularly harmful to creditors. Indeed, every dollar paid to the trustee and his firm is a dollar that will not be distributed to creditors. The Bankruptcy Code, remarkably, allows a trustee to retain his own law firm to represent him in his capacity as a trustee. But this inherently conflicted arrangement is not …
After Years Of Working With ‘Ritmo’ Detainees, I Know The Inhumane Facility Doesn’T Deserve A Second Chance, Erica B. Schommer
After Years Of Working With ‘Ritmo’ Detainees, I Know The Inhumane Facility Doesn’T Deserve A Second Chance, Erica B. Schommer
Faculty Articles
No abstract provided.
Social Justice And Islamic Jurisprudence, Russell Powell
Social Justice And Islamic Jurisprudence, Russell Powell
Faculty Articles
No abstract provided.
A Legal Fempire?: Women In Complex Civil Litigation, Brooke D. Coleman
A Legal Fempire?: Women In Complex Civil Litigation, Brooke D. Coleman
Faculty Articles
Justice Ruth Bader Ginsburg made headlines when she said that she would be satisfied with the number of women on the Supreme Court “when there are nine.” But why should that answer have been so remarkable? After all, there were nine men on the Court for nearly all of its history. Yet, Justice Ginsburg’s statement was met with amusement or from some quarters — disdain. What answer would have been considered more appropriate coming from a groundbreaking feminist litigator? Would four have been an acceptable answer? Would five have been presumptuous? This episode reflects our cramped view of how much …
Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey
Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey
Faculty Articles
For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.
This article surveys this constitutional odyssey, …
#Metoo Justice (Review Of "#Metoo, Time’S Up, And Theories Of Justice" By Lesley Wexler, Jennifer Robbennolt & Colleen Murphy), Brooke D. Coleman
#Metoo Justice (Review Of "#Metoo, Time’S Up, And Theories Of Justice" By Lesley Wexler, Jennifer Robbennolt & Colleen Murphy), Brooke D. Coleman
Faculty Articles
No abstract provided.
What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis (Afterword), Steven Bender, Tayyab Mahmud, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzalez Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Zsea Bowmani, Anthony E. Varona
What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis (Afterword), Steven Bender, Tayyab Mahmud, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzalez Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Zsea Bowmani, Anthony E. Varona
Faculty Articles
No abstract provided.
The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth
The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth
Faculty Articles
Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.
Your clients want a court …
Socialized Liability In Chinese Tort Law, Chenglin Liu
Socialized Liability In Chinese Tort Law, Chenglin Liu
Faculty Articles
This article explores two unique aspects of the Chinese Tort Liability Law (TLL): (1) Article 24 holds that a party not at fault shall share the loss with the victim in non-strict liability cases under undefined circumstances, and (2) the government often shields a party at fault from liability in mass tort cases by disregarding the TLL entirely. These two aspects may seem contradictory; however, they are both based on the same principle of socialized liability, which is first articulated in this article.
Scholars often claim that Article 24 embodies the principle of equitable liability. This article challenges such claims …
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
Faculty Articles
In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.
This Article examines …
What's Next: Counter-Stories And Theorizing Resistance (Foreword), Tayyab Mahmud
What's Next: Counter-Stories And Theorizing Resistance (Foreword), Tayyab Mahmud
Faculty Articles
No abstract provided.
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Faculty Articles
Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.
In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …
The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash
The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash
Faculty Articles
This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …
Polar Opposites: Assessing The State Of Environmental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival
Polar Opposites: Assessing The State Of Environmental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival
Faculty Articles
Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet these regions differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System, a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in …
The Morality Of Compulsory Licensing As An Access To Medicines Tool, Margo A. Bagley
The Morality Of Compulsory Licensing As An Access To Medicines Tool, Margo A. Bagley
Faculty Articles
This Article contemplates the validity of theft rhetoric in relation to the right of countries to grant compulsory licenses from an unconventional perspective; that of biblical teachings on what it means to steal.
Part I describes the use of theft rhetoric in relation to IP infringement broadly and drug-patent compulsory licenses in particular.
Part II challenges the contention, suggested by theft rhetoric, that compulsory licenses are morally wrong as a form of stealing, by considering the meaning of theft in the context of its Judeo-Christian origins.
Part III considers the cogency of the accusation that the issuance of compulsory licenses …
Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema
Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema
Faculty Articles
This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in …
Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin
Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin
Faculty Articles
Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …
Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert V. Percival
Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert V. Percival
Faculty Articles
This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems.
This Article proceeds in four parts. Part I reviews the history of …
A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price
A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price
Faculty Articles
First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.
Second, the Court's pronouncement in the Chinese …
Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo
Unbundling Freedom In The Sharing Economy, Deepa Das Acevedo
Faculty Articles
Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.
This …
Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell
Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell
Faculty Articles
In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …
Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd
Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd
Faculty Articles
Recent changes in the pharmaceutical industry have spurred an unprecedented wave of mergers and acquisitions. Some researchers and agencies have questioned whether pharmaceutical consolidation could impede drug innovation. However, as I explain in this Article, these concerns are largely based on an outdated understanding of the drug innovation ecosystem. Whereas a few decades ago almost all drug discovery took place inside traditional pharmaceutical companies, today most drug innovation is externally-sourced from biotech companies and smaller firms. Internal R&D is no longer the primary source, or even an important source, of drug innovation. As a result, analyses that focus on the …
A Comprehensive Approach To Law School Access Admissions, Jeffrey Minneti
A Comprehensive Approach To Law School Access Admissions, Jeffrey Minneti
Faculty Articles
This article provides a theoretical framework fo building an effective law school access admission program and it gives that framework flesh, color, and voice through a description of the access admission program at Seattle University School of Law. The framework describes the neurobiology of learning, links that neurobiology to the self-regulated learning cycle, summarizes the learning challenges that students from underrepresented populations frequently face and provides strategies law school faculty and administers can implement to address those challenges. The article then demonstrates how the framework operates in a law school setting through a description of the Academic Resource Center's work …
Entrada: Slavery, Religion And Reconciliation, Bill Piatt
Entrada: Slavery, Religion And Reconciliation, Bill Piatt
Faculty Articles
Each year, Santa Fe, NM celebrates a Fiesta. One component, the Entrada, celebrate the "peaceful" re-conquest of the Indigenous people by the Spanish colonizers. Controversy has arisen in recent years as activists challenge the memorialization of a tradition that they feel represents slavery and brutality. Linking their struggle to recent efforts to remove memorials to the Confederacy, they have sought to physically block the re-enactment, leading to arrests, collateral conflict, and the threat of future violence. How do we move forward as a society with the legacy of slavery that built this region and country: This article examines the historical, …
Foreign Patent Decisions And Harmonization: A View Of The Presumption Against Giving Foreign Patent Decisions Preclusive Effect In United States Proceedings In Light Of Patent Law International Harmonization, Roberto Rosas
Faculty Articles
Where there is a United States patent, there are also likely multiple foreign counterpart patents. Armed with a patent, a holder can then move to stop others from infringing on his invention, and more often than not, the defendant will argue that the United States patent is invalid, often citing foreign decisions and proceedings in support of that claim. Given the territorial nature of patents and the fact that countries have different requirements and standards for granting patents, United States courts have applied a presumption against giving preclusive effect to foreign patent decisions. The courts, however, have made clear that …
Ethics In The Legal Industry, Michael Ariens
Ethics In The Legal Industry, Michael Ariens
Faculty Articles
A brief item in the Hearsay section of the June 2017 ABA Journal was headlined "2%." This number indicated an increase in the percentage of lawyers, from 2012 to 2016, "who worked remotely within the legal industry." Making one's "office" a location other than the physical space leased or owned by oneself or by an employer is hardly news, even as applied to the work of lawyers. Lawyers know as well as anyone that technology allows one to work almost anywhere and, unfortunately, almost any time. What is striking in this brief news item is the use by the flagship …
Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott
Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott
Faculty Articles
After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …