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Articles 1 - 30 of 413
Full-Text Articles in Law
Computer Attacks On Critical National Infrastructure: A Use Of Force Invoking The Right Of Self-Defense, Eric Talbot Jensen
Computer Attacks On Critical National Infrastructure: A Use Of Force Invoking The Right Of Self-Defense, Eric Talbot Jensen
Faculty Scholarship
Computer networks create tremendously increased capabilities but also represent equally increased vulnerabilities. These vulnerabilites are especially acute in relation to potential attacks on critical national infrasturucture. This Article proposes that international law must evolve to recognize that attacks against a nation's critical national infrastructure from any source constitute a use of force. Such attacks, therefore, give the victim state the right to proportional self-defense - including anticipatory self-defense - even if the computer network attack is not an armed attack under Article 51 of the United Nations Charter. Due to the instantaneous nature of computer network attacks, the right to …
Network Effects And Legal Citation: How Antitrust Theory Predicts Who Will Build A Better Bluebook Mousetrap In The Age Of Electronic Mice, A. Christine Hurt
Network Effects And Legal Citation: How Antitrust Theory Predicts Who Will Build A Better Bluebook Mousetrap In The Age Of Electronic Mice, A. Christine Hurt
Faculty Scholarship
No abstract provided.
After Intersectionality, Robert S. Chang, Jerome Mccristal Culp Jr.
After Intersectionality, Robert S. Chang, Jerome Mccristal Culp Jr.
Faculty Scholarship
No abstract provided.
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
Faculty Scholarship
It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.
Independent External Review Of Health Maintenance Organizations' Medical-Necessity Decisions, Wendy K. Mariner
Independent External Review Of Health Maintenance Organizations' Medical-Necessity Decisions, Wendy K. Mariner
Faculty Scholarship
States may have more freedom to regulate the practices of managed-care organizations than many observers previously believed. In the absence of congressional action on the federal Bipartisan Patient Protection Act, the primary source of patient-protection legislation remains at the state level. Nevertheless, the federal Employee Retirement Income Security Act (ERISA) of 19742restricts state regulation of health maintenance organizations (HMOs) that serve private employee group health plans. On June 20, 2002, the U.S. Supreme Court, in Rush Prudential HMO, Inc. v. Moran, upheld an Illinois state law that requires binding independent external review when an HMO disagrees with the …
Shedding Rights, Shredding Rights: A Critical Examination Of Students' Privacy Rights And The Special Needs Doctrine After Earls, Meg Penrose
Faculty Scholarship
On June 27, 2002, the United States Supreme Court held that all students participating in extracurricular activities in public schools may be subjected to random, suspicionless drug testing. The holding, in itself, is not terribly remarkable, as the decision in Board of Education of I.S.D. 92 of Pottawatomie County, Oklahoma v. Earls follows a developing pattern among public schools in this country. Further, the Earls case simply broadens the right of the state to randomly drug test students, without individualized suspicion, that this same court announced a mere seven years earlier in Vernonia v. Acton. What is remarkable about …
The Critical Resource Theory Of Fiduciary Duty, D. Gordon Smith
The Critical Resource Theory Of Fiduciary Duty, D. Gordon Smith
Faculty Scholarship
This Article proposes a new theory to unify the law of fiduciary duty. The prevailing view holds that fiduciary law is atomistic, arising for varied reasons in established categories of cases (such as trustee-beneficiary and director-shareholder) and ad hoc in relationships where one person trusts another and becomes vulnerable to harm as a result. By contrast, the critical resource theory of fiduciary duty holds that every relationship properly designated as fiduciary conforms to the following pattern: one party (the fiduciary) acts on behalf of another party (the beneficiary) while exercising discretion with respect to a critical resource belonging to the …
Brief Of Keith N. Hylton As Amicus Curiae In Support Of The Respondents In State Farm Mutual Automobile Insurance Company, Petitioner V. Curtis B. Campbell And Inez Preece Campbell, Respondents, Keith N. Hylton
Faculty Scholarship
Virtually all courts accept the view that high punitive damage awards are appropriate in instances where the defendant's harmful conduct is unlikely to lead to liability. See, e.g., BMW of N. Am. Inc. v. Gore, 517 U.S. 559, 582 (1996). The Utah Supreme Court reinstated the $145 million punitive damage award in this case in part on the ground that "State Farm's actions, because of their clandestine nature, will be punished at most in one out of every 50,000 cases as a matter of statistical probability." Pet App. 30a. A central issue of this case is whether the Utah Supreme …
"Greening" The Constitution - Harmonizing Environmental And Constitutional Values, Robert V. Percival
"Greening" The Constitution - Harmonizing Environmental And Constitutional Values, Robert V. Percival
Faculty Scholarship
No abstract provided.
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Faculty Scholarship
This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.
On The Internet, Nobody Knows You're A Judge: Appellate Courts' Use Of Internet Materials, Coleen M. Barger
On The Internet, Nobody Knows You're A Judge: Appellate Courts' Use Of Internet Materials, Coleen M. Barger
Faculty Scholarship
No abstract provided.
Conservative Or Constitutionalist?, Gary S. Lawson
Conservative Or Constitutionalist?, Gary S. Lawson
Faculty Scholarship
The persistence of the question posed by the editors of this journal demonstrates that legal conservatives have an identity crisis. In large measure, that crisis is an artifact of the ambiguity in the term "legal conservative." I use the term roughly to mean someone who believes in a variant of original meaning for interpreting constitutions and statutes' and who views the common law as a device for securing social coordination within a spontaneous order-all overlaid with a strong respect for the Anglo-American, Rule of Law tradition. As definitions go, this is pretty imprecise. There is no single meaning for original …
Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher
Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher
Faculty Scholarship
Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive …
Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon
Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon
Faculty Scholarship
Professor Lunney's piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney's arguments within the future of Intellectual Property scholarship as a whole.
A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Saab Fortney
A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Saab Fortney
Faculty Scholarship
This article addresses the serious public health problem of substance abuse among pregnant women. Part I of this article introduces the national problem of prenatal drug abuse. Part II discuses the appropriateness of government intervention. The article explains the medical consequences of prenatal drug abuse, and then, describes the justification of government intervention. The article details both existing criminal law and new legislation regarding prenatal drug abuse. Part III addresses constitutional concerns and the conflict between a woman’s right on the one hand and the state interest and “fetal rights” on the other. Part IV considers the moral and legal …
Fair Use And Market Failure: Sony Revisited, Glynn S. Lunney Jr
Fair Use And Market Failure: Sony Revisited, Glynn S. Lunney Jr
Faculty Scholarship
With the development and dissemination of digital technology, the importance of private copying and its legal status, whether fair or unfair under copyright law, has only increased. Yet, despite its status as the Court's first and only pronouncement on the issue, Sony has played surprisingly little role in this ongoing debate. Even in cases bearing seemingly close similarity to the home-taping at issue in Sony itself, such as the private, home copying of musical works, courts have refused to follow Sony's fair use outcome. Having been narrowly construed as an exceptional instance of market failure, Sony seldom appears to …
Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman
Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman
Faculty Scholarship
On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.5 When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …
Twenty Years Later, Robert J. Desiderio
Special Study On Market Structure, Listing Standards And Corporate Governance, Roberta S. Karmel
Special Study On Market Structure, Listing Standards And Corporate Governance, Roberta S. Karmel
Faculty Scholarship
No abstract provided.
The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson
The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson
Faculty Scholarship
In February of 2002, the International Competition for Online Dispute Resolution (ICODR) was held to address the issue of new uses of technology is dispute resolution. This article describes the competition with individual presentations from the perspectives of a problem drafter, a coach, a participant, the evaluators, and an organizer. In the conclusion, the author presents some observations on why this International Competition for Online Dispute Resolution is big, different, and new.
An Asymmetric Information Model Of Litigation, Keith N. Hylton
An Asymmetric Information Model Of Litigation, Keith N. Hylton
Faculty Scholarship
This paper presents a cradle-to-grave model of tort liability, incorporating the decision to comply with the due-care standard, the decision to file suit, and the decision to settle. I use the model primarily to examine settlement rates, plaintiff win rates, and compliance with the due-care standard. The key results of the model are as follows: (1) litigation to judgment occurs only when some but not all actors comply with the due-care standard, and (2) if defendants have the information advantage at trial, plaintiff win rates generally will be less than 50 percent. I apply the model and its simulation results …
Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann
Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann
Faculty Scholarship
Privatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information …
Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, Aaron Twerski, J. A. Henderson
Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, Aaron Twerski, J. A. Henderson
Faculty Scholarship
No abstract provided.
The Phenomenon Of Substitution And The Statute Quia Emptores, Ronald B. Brown
The Phenomenon Of Substitution And The Statute Quia Emptores, Ronald B. Brown
Faculty Scholarship
No abstract provided.
Choice Of Entity For A Venture Capital Start-Up: The Myth Of Incorporation, Daniel S. Goldberg
Choice Of Entity For A Venture Capital Start-Up: The Myth Of Incorporation, Daniel S. Goldberg
Faculty Scholarship
No abstract provided.
Perspectives Of A New Executive Director, William H. Henning
Perspectives Of A New Executive Director, William H. Henning
Faculty Scholarship
Article Extract:
It goes without saying that a national economy cannot function efficiently without a core set of commercial laws to provide a stable base. Can you imagine the added costs of doing business if common transactions were governed by truly idiosyncratic laws in the various states? We had just such a situation in secured-finance law before the widespread adoption of Article 9 of the Uniform Commercial Code. Creditors seeking to use personal property as security faced a bewildering array of devices-pledge, chattel mortgage, conditional sale, assignment of accounts receivable, trust receipt, equipment trust, factor's lien, etc. Some of the …
International Parallel Litigation - A Survey Of Current Conventions And Model Laws, James P. George
International Parallel Litigation - A Survey Of Current Conventions And Model Laws, James P. George
Faculty Scholarship
Parallel litigation is difficult to define and sometimes means what the speaker wants it to mean. It may be limited to identical lawsuits with exactly the same parties and the same claims. It may also mean any instance of two or more lawsuits that may result in claim preclusion for some or all of the parties. It includes concepts of reactive and repetitive litigation, related litigation, and derivative litigation. Whatever it is thought to encompass, it incurs criticism as being vexing and harassing, wasteful of the parties' and courts' resources, and inclined to produce inconsistent results and possibly inter-governmental discord. …
The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon
The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon
Faculty Scholarship
Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the "Cookie Cutter Syndrome" describes the standard approach Western nations developed to assist legal reform in the former Communist world.' Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on …
Beyond Observable Prejudice-Moving From Recognition Of Differences To Feasible Solutions: A Critique Of Ian Ayres' Pervasive Prejudice?, Mary Margaret Penrose
Beyond Observable Prejudice-Moving From Recognition Of Differences To Feasible Solutions: A Critique Of Ian Ayres' Pervasive Prejudice?, Mary Margaret Penrose
Faculty Scholarship
As a female professor working within the academic ranks of a law school, I did not have to read Ian Ayres' work, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination, to know that the odds remain quite high that blacks and women will be subjected to greater instances of discrimination in the marketplace, in medical facilities, and in judicial proceedings than their white male counterparts. Although I would not suggest that such conclusion is axiomatic, it certainly is observable on an experiential level by those falling within the two categories (race and gender) discussed in Professor Ayres' book. …
Searching For A Sense Of Control: The Challenge Presented By Community Conflicts Over Concentrated Animal Feeding Operations, Nancy A. Welsh, Barbara Gray
Searching For A Sense Of Control: The Challenge Presented By Community Conflicts Over Concentrated Animal Feeding Operations, Nancy A. Welsh, Barbara Gray
Faculty Scholarship
The growth in the number of concentrated animal feeding operations ("CAFOs"), particularly those involved in swine production, has brought with it increased community concern and outright conflict in many communities across the United States.' Most commentators have focused upon anticipated outcomes to explain the contentiousness of CAFO-related disputes.2 Meanwhile, even though the social dynamics that contribute to the development and escalation of conflicts over CAFOs parallel those exhibited in other kinds of community conflicts, little research has systematically examined the social dynamics associated with CAFO conflicts. One exception to this deficiency is recent work conducted by a team of researchers …