Law Commons^™

Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler

Faculty Publications

We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review cases litigated in federal court under the FMLA involving requests for family leave due …

Love, Sex And Politics? Sure. Salary? No Way: Workplace Social Norms And The Law, Rafael Gely, Leonard Bierman

Faculty Publications

A recent article in the New York Times captioned “Love, sex and politics? Sure. Salary? No way” discusses Americans' strong aversion to talking about their salaries. The piece notes that while discussion of financial matters is often acceptable in some parts of the world, it is generally considered “crass” in the United States. In short, discussion by individuals of their salaries and related matters can be seen as violating an American “social norm.” One-third of United States private sector employers have reinforced this norm by adopting specific rules prohibiting employees from discussing their wages with co-workers, rules known as pay …

Avoiding Regulatory Mismatch In The Workplace: An Informational Approach To Workplace Safety Regulation, Thom Lambert

Faculty Publications

The purpose of this article is to do just that. As it turns out, there is fertile middle ground between the pure libertarian “do nothing” approach and the paternalistic command-and-control approach OSHA tends to favor. Even the middle ground “information-provision” approach a number of theorists have advocated (in imprecise terms) could be implemented several different ways, some of which would be more effective than others. It is therefore possible to make some systematic policy prescriptions that may aid regulators attempting to avoid regulatory mismatch.In the course of exploring the range of regulatory options, this article attempts to make several contributions …

Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional?, Rodney J. Uphoff

Faculty Publications

This essay begins, therefore, by briefly examining the question of what constitutes good lawyering. The essay acknowledges the difficulty of defining precisely what is good lawyering. In fact, scholars, judges, and lawyers often disagree markedly when they characterize lawyer behavior using the term. Not surprising, then, even though academic commentators routinely trumpet the importance of establishing a meaningful attorney-client relationship as an important aspect of good lawyering, not all in the legal profession embrace that view.8Indeed, the debate about the importance of a good lawyer-client relationship largely reflects contrasting attitudes within the legal profession about the client's role in the …

Conservation Through Collusion: Antitrust As An Obstacle To Marine Resource Conservation, Jonathan H. Adler

Faculty Publications

Although it is not a new environmental problem, overfishing is arguably one of the most serious environmental problems today. Despite decades of government regulation, fisheries are in trouble the world over.

With little doubt, the federal fishery regulations adopted in the last twenty-five years have failed to ensure sustainable utilization of U.S. fisheries. The existing regulatory framework is "a failed experiment that has led to the destruction of United States coastal fisheries." At the same time that the federal government adopted an elaborate regulatory structure, federal law has impeded the development of cooperative fishery management institutions that may have helped …

Nietzsche’S Place In Nineteenth Century German Philosophy, Michael S. Green

Faculty Publications

No abstract provided.

Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf

Faculty Publications

This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach?

Damages As Narrative, Melody Richardson Daily

Faculty Publications

The traditional approach to legal instruction in America-the casebook method-requires students to read hundreds of appellate decisions, most of which include equally terse accounts of human suffering. How might this pedagogical approach affect future lawyers? Can reading a book like Damages help law students develop the ability to empathize with their clients?

Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin

Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …

Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck

Faculty Publications

This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.

Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act, Dale A. Whitman, Grant S. Nelson

Faculty Publications

The Uniform Nonjudicial Foreclosure Act is one of the few creative approaches to mortgage foreclosure to emerge in many decades. In this Article, the authors examine why uniformity in foreclosure law among the states in desirable and, accordingly, advocate foreclosure reform. They analyze the Act, promulgated in 2002, giving specific attention to the Act's new methods of foreclosure by negotiated sale and by appraisal. They also examine the Act's numerous special protections for residential debtors and consider the effectiveness of the Act's procedures concerning subordinate leases, titles arising from foreclosures, surpluses and deficiencies resulting from foreclosures, and fairness of foreclosure …

2004 Update - 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan

Faculty Publications

This article updates the author's previously published article on the topic, provides some insight into recent events in this area of the law, and specifies a few minor items that were noted incorrectly in the earlier work.

A Brief History Of 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan

Faculty Publications

This article summarizes the history of the 180-day exclusivity provision in the Hatch- Waxman Amendments to the Federal Food, Drug, and Cosmetic Act (FDCA). Part II presents the statutory language, as amended in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), and summarizes the law that applies to new abbreviated new drug applications (ANDAs) (those filed after December 8, 2003, provided there was no paragraph IV certification to the listed drug prior to December 8), as well as the law that applies to all other ("old") ANDAs. Part III describes the legislative history of the original 1984 …

Information Control In Times Of Crisis: The Tools Of Repression (Symposium, Privacy And Surveillance), Christina E. Wells

Faculty Publications

This article identifies several tools of information control that occur consistently throughout history. The government does not use all of these tools in every national security crisis. Nor does it always abuse them. However, the patterns that emerge suggest a certain predictability to (1) the government's actions during national security crises, and (2) the potentially negative consequences flowing from them that warrants our attention. Understanding this historical pattern of government action allows one to identify and potentially prevent future problems. This is especially important in the post-9/11 world in which the government has asked for and received controversial powers with …

Copyright, Derivative Works And Fixation: Is Galoob A Mirage, Or Does The Form (Gen) Of The Alleged Derivative Work Matter?, Tyler T. Ochoa

Faculty Publications

The Copyright Act gives a copyright owner the exclusive right "to prepare derivative works based on the copyrighted work." Does the Copyright Act require that a derivative work be "fixed in a tangible medium of expression" in order to be infringing? Existing case law is contradictory, stating both that a derivative work does not need to be "fixed" but that it does need to be embodied in some "concrete or permanent form." This contradiction stems from the fact that although the statutory language does not appear to require fixation, reading the statutory language literally would render illegal merely imagining a …

Mothers Who Kill: Coming To Terms With Modern American Infanticide, Michelle Oberman

Faculty Publications

No abstract provided.

Self-Executing Treaties And Domestic Judicial Remedies, David Sloss

Faculty Publications

No abstract provided.

Brief Of Appellees Montana-Dakota Utilities Co., Northwestern Public Service, And Otter Tail Power Company, Neil Fulton, Dave Gerdes

Faculty Publications

No abstract provided.

Rights Of Access To The Courts By Individuals With Disabilities, Tom Simmons

Faculty Publications

No abstract provided.

The Institutional Side Of Religious Liberty: A New Model Of The Establishment Clause, Patrick Garry

Faculty Publications

No abstract provided.

The Flip Side Of The First Amendment: A Right To Filter, Patrick Garry

Faculty Publications

No abstract provided.

The First Amendment In A Time Of Media Proliferation: Does Freedom Of Speech Entail A Private Right To Censor, Patrick Garry

Faculty Publications

No abstract provided.

Defining Speech In An Entertainment Age: The Case Of First Amendment Protection For Video Games, Patrick Garry

Faculty Publications

No abstract provided.

An Inequality Among Equals: Disparities In The Judicial Treatment Of Free Speech And Religious Exercise Claims, Patrick Garry

Faculty Publications

The constitutional models governing the religion clauses of the First Amendment have undergone significant transformations. These transformations have sought to bring a greater consistency and historical harmony to the Court's religious liberty decisions. The success of this endeavor can be gauged in part by comparing the judicial treatment of religion clause claims with free speech claims. However, such a comparison reveals that the former occupy a lower constitutional status than do the latter.

The Irrationality Of Shareholder Class Action Lawsuits: A Proposal For Reform, Patrick Garry, Candice J. Spurlin, Debra A. Owen, William A. Williams, Lindsay J. Efting

Faculty Publications

No abstract provided.

Public Policy Considerations Warranting Denial Of Reimbursement To Erisa Plans: It's Time To Recognize The Elephant In The Courtroom, Roger Baron

Faculty Publications

No abstract provided.

Amendment E: The Constitutional Dimensions Of Unintended Consequences, Neil Fulton

Faculty Publications

No abstract provided.

Rulemaking From The Bench: A Place For Minimalism At The Icty, Megan A. Fairlie

Faculty Publications

This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. …

Introduction: The Triangulation Of International Intellectual Property Law: Cooperation, Power, And Normative Welfare, Peter M. Gerhart

Faculty Publications

Introduction to the symposium "The Future of International Intellectual Property: The International Relations of Intellectual Property Law," Cleveland, Ohio March 26,2004.

The Political Economy Of Property Exemption Laws, Richard M. Hynes, Anup Malani, Eric A. Posner

Faculty Publications

Exemption laws enable people who default on loans to protect certain assets from liquidation. Every state has its own set of exemption laws, and they vary widely. The 1978 federal bankruptcy law contains a set of national exemptions, which debtors in bankruptcy are permitted to use instead of their state's exemptions unless the state has formally "opted out" of the federal system. We contend that states' decisions to opt out shed light on their exemption levels. We find that states are more likely to opt out if their state exemption is lower than the federal exemption and that states are …