Law Commons^™

Remedying Racial Profiling, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Court Should Have Remained Silent: Why The Court Erred In Deciding Dickerson V. United States, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Against Sovereign Immunity, Erwin Chemerinsky

Faculty Scholarship

In recent years, the Supreme Court has substantially expanded the scope of state sovereign immunity. These decisions provide an important occasion for a reconsideration of the entire doctrine of sovereign immunity. This article argues that sovereign immunity is an anachronistic concept, derived from long discredited royal prerogatives, and that it is inconsistent with basic principles of the American legal system. Sovereign immunity is justified neither by history nor, more importantly, by functional considerations. Sovereign immunity is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law. This article concludes that sovereign immunity, for …

The Right To Self-Government After Bush V. Gore, Paul D. Carrington, H. Jefferson Powell

Faculty Scholarship

'Bush v. Gore' was decided a year ago. As expected, it evoked a flood of journalistic and academic commentary. The present authors write to express dissatisfaction with the resulting literature. They find it in general to be dominated by the usual political discourse conducted from opposite ends of the usual political spectrum, with both ends sharing an assumption that the Supreme Court was animated in its decision by the usual political motives that it has become conventional to see in the actions of that institution. Left almost completely out of view have been the more personal selfish motives of the …

State Sovereign Immunity And Stare Decisis: Solving The Prisoners’ Dilemma Within The Court, Neil S. Siegel

Faculty Scholarship

This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to …

Executive Order 13,141 And The Environmental Review Of Trade Agreements, James Salzman

Faculty Scholarship

No abstract provided.

Health Care Fraud And Abuse: A Tale Of Behavior Induced By Payment Structure, Arti K. Rai

Faculty Scholarship

The campaign to curtail "fraud and abuse" in the Medicare and Medicaid programs represents an attempt by regulators to evade more fundamental and difficult questions regarding cost and quality control. In the Medicare arena, tackling these larger questions will require dismantling the program's fee-for-service structure and imposing on providers financial incentives to evaluate carefully health care costs and benefits. Commentary on, David A. Hyman, Health Care Fraud and Abuse: Market Change, Social Norms and the Trust "Reposed in Workmen," 30 Journal of Legal Studies 531 (2001)

Dual Federalism, Concurrent Jurisdiction, And The Foreign Affairs Exception, Ernest A. Young

Faculty Scholarship

No abstract provided.

Who’S Afraid Of The Twelfth Amendment?, Ernest A. Young, Sanford Levinson

Faculty Scholarship

No abstract provided.

International Dispute Settlement At The Trademark-Domain Name Interface, Laurence R. Helfer

Faculty Scholarship

This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999.

The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, …

Designing Non-National Systems: The Case Of The Uniform Domain Name Dispute Resolution Policy, Laurence R. Helfer, Graeme B. Dinwoodie

Faculty Scholarship

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by …

Lessons From North Carolina’S Redistricting Litigation, Robinson O. Everett

Faculty Scholarship

No abstract provided.

Incorporating Labor, Mitu Gulati

Faculty Scholarship

No abstract provided.

The Federalism Revolution, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Role Of Public International Law In The Wto: How Far Can We Go?, Joost H. B. Pauwelyn

Faculty Scholarship

No abstract provided.

Special Operations Forces After Kosovo, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Risk, Death And Time: A Comment On Judge Williams’ Defense Of Cost-Benefit Analysis, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Expression And Appearance: A Comment On Hellman, Matthew D. Adler

Faculty Scholarship

Response to, Deborah Hellman, Judging by Appearances: Professional Ethics, Expressive Government, and the Moral Significance of How Things Seem, 60 Maryland Law Review 653 (2001).

Settlement Of Mass Torts In A Federal System, Francis Mcgovern

Faculty Scholarship

Engle v. R.J. Reynolds Tobacco Co. raises the questions of whether and how elastic mass torts can be settled in our federal system. In particular, there is a procedural and practical dilemma: state courts provide relative ease of class action certification, but with the power to provide closure. A wide variety of options for the parties are considered in light of the Amchem and Ortiz decisions with the conclusion that the demand for finality will drive "bottom-up" reform and lead to more flexibility in resolving those types of mass torts.

Universal Jurisdiction In A Divided World: Conference Remarks, Madeline Morris

Faculty Scholarship

No abstract provided.

Overcoming Democracy: Richard Posner And Bush V. Gore, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Codifying Anti-Avoidance Doctrines And Controlling Corporate Tax Shelters, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Seattle’S Legal Legacy And Environmental Reviews Of Trade Agreements, James Salzman

Faculty Scholarship

No abstract provided.

Wetland Value Indicators For Scoring Mitigation Trades, James Salzman, Lisa A. Wainger, Dennis King, James Boyd

Faculty Scholarship

No abstract provided.

The Multistate Settlement Agreement And The Problem Of Social Regulation Beyond The Power Of State Government, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Protecting Ecosystem Services: Science, Economics And Law, James Salzman, Barton H. Thompson, Gretchen C. Daily

Faculty Scholarship

No abstract provided.

Recalling Atticus Finch: Conversations With Practicing Lawyers, Deborah A. Schmedemann

Faculty Scholarship

This article discusses the skills, values, and attitudes that are key to practicing law. Input from practicing attorneys shows that while some traits are essential for all practice areas, other traits are specifically necessary for certain types of attorneys.

Preserving The Public Trust In State-Owned Intellectual Property: A Recommendation For Legislative Action, Sharon Sandeen

Faculty Scholarship

Whether a state chooses to dedicate its intellectual property to the public domain or derive revenue from the licensing of its rights, absent express authority on the subject there is uncertainty. State employees who are aware of the existence of state-owned intellectual property are not certain how it should be managed or if they are authorized to expend state resources to pursue infringement claims. Individuals and entities who wish to use state-owned intellectual property do not know how to obtain permission for such use and without permission they cannot be certain that they will not be sued for infringement. Without …

Remembering Mrs. Murphy: A Remedies Approach To The Conflict Between Gay/Lesbian Renters And Religious Landlords, Marie Failinger

Faculty Scholarship

There have been a number of legislative, caselaw and academic attempts at trying to resolve the conflict between the non-discrimination rights of gay and lesbian couples seeking housing and the free exercise rights of religious landlords who don't believe they should rent to unmarried couples. The academic writing often tries to resolve this conflict either by minimizing the harm to one of the parties (e.g., by categorizing the landlord's harm as merely commercial, or the tenant's as merely a problem of housing availability) or denying the relative importance of one of the party's rights. Others attempt a more positivist approach, …

What's In A Name? Law's Identity Under The Tort Of Appropriation, Jonathan Kahn

Faculty Scholarship

This article is divided into three parts. In Part I, the article explores the notion that under the tort of appropriation, a person’s name is understood to implicate critical aspects of her identity. This notion is explored in relation to specific historical cases raising the issues of whether a woman who adopts her husband’s name has a property right in that name and whether a person who adopts a professional or stage name has separate rights in that name apart from his legal name. Second, Part II focuses on a person’s right to maintain the integrity of his physical image. …