Law Commons^™

Adverse Publicity By Administrative Agencies In The Internet Era, Nathan Cortez

Faculty Journal Articles and Book Chapters

Nearly forty years ago, Ernest Gellhorn documented the potentially devastating impact that can occur when federal agencies issue adverse publicity about private parties. Based on his article, the Administrative Conference of the United States (ACUS) recommended that courts, Congress, and agencies hold agencies to clear standards for issuing such publicity. In the decades since, some agencies have adopted standards, but most have not. And neither the courts nor Congress has intervened to impose standards. Today, agencies continue to use countless forms of publicity to pressure alleged regulatory violators and to amplify their overall enforcement powers — all without affording due …

Clear But Unconvincing: The Federal Circuit’S Invalidity Standard, David O. Taylor

Faculty Journal Articles and Book Chapters

The Federal Circuit’s standard for proving invalidity of patent claims is clear. The Federal Circuit always requires clear and convincing evidence to prove that a patent claim is invalid. The rationale behind this standard, however, is unconvincing. There are significant reasons to believe that the Patent Office rarely considers the most relevant prior art and that, instead, alleged infringers often find prior art that is more relevant than the prior art considered by the Patent Office. It defies logic to apply the clear and convincing burden where the Patent Office considered only prior art that is less relevant than the …

The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs. Ruth B. Shipley, the Chief of the State Department’s Passport Division from 1928 to 1955. Mrs. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.

This article examines how Mrs. Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Report Prepared For The Presidential Council Of The Russian Federation For The Development Of Civil Society And Human Rights Regarding The Verdict Of The Khamovnichesky District Court Of The City Of Moscow Against M.B. Khodorkovsky And P.L. Lebedev, Criminal Case N 1-23/10, 27 December 2010, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This report resulted from an invitation received on April 1, 2011 from the Presidential Council of the Russian Federation for the Development of Civil Society and Human Rights "to participate in an independent public expert analaysis of official documents and proceedings in the recent criminal case concerning M.B. Khodorkovsky and P.L. Lebedev, who were convicted by a judgment announced on December 27, 2010." The report was submitted to the Council on October 1, 2011. It was the only report submitted from the United States, the other reports having been sought and received from scholars in Russia, Germany, and the Netherlands. …

Indefinite Detention Under The Laws Of War, Chris Jenks, Eric Talbot Jensen

Faculty Journal Articles and Book Chapters

The recent acquittal of the first Guantanamo Bay detainee to stand trial in U.S. federal court on all but one of the 286 charges he faced stemming from the 1998 bombings of two U.S. embassies in Africa has reinvigorated the discussion on indefinite detention under the laws of war. While the issue has been raised in the past, the discussion hasn’t extended beyond stating that the law of war, or law of armed conflict (LOAC) as it is often called, provides a legal basis for detention, including detention for the duration of hostilities. In fact, the Obama Administration has made …

Debts, Defaults And Details: Exploring The Impact Of Debt Collection Litigation On Consumers And Courts, Mary B. Spector

Faculty Journal Articles and Book Chapters

This Article explores consumer collection litigation through original research from more than five hundred cases filed in the Dallas County courts. It analyzes the data within the context of the modern debt collection industry, paying special attention to the role of debt buyers and to the peculiar legal issues their involvement raises. After explaining the methodology and mechanics used to gather and analyze the data, the Article discusses the data collected, identifying and analyzing the most significant findings and placing them within a larger legal landscape. While the research confirms anecdotal reports of litigation abuse in consumer collection cases, it …

The Proposed Texas Assignment Of Rents Act: A Legislative Escape From The Common Law Morass, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

When a loan is secured by a mortgage or deed of trust on an income-producing property, such as an office building, shopping center, or apartment complex, rents are a significant part of the security for the loan, in addition to the land and improvements.Rents provide the funds necessary to pay for operating and maintaining the mortgaged property and to make payments on the mortgage loan.After a default on the mortgage loan, a borrower, facing the possibility of losing the property to foreclosure, may apply rents to purposes unrelated to the property or the mortgage loan. The lender, on the other …

The Principle Of Subsidiarity Applied: Reforming The Legal Framework To Capture The Psychological Abuse Of Children, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Psychological abuse is the most prevalent type of child abuse. It lies at the core of child maltreatment because it is embedded in and interacts with physical and sexual abuse, as well as physical neglect. It also has a more extensive and destructive impact on the development of children than any other type of abuse. Yet, the current child protection system fails to adequately address the problem because the normative framework of the child protection system does not always include the psychological abuse of children. For the majority of states, the physical health, safety, and well-being of children are focal …

African-American Grandmothers: Does The Gender-Entrapment Theory Apply? Essay Response To Professor Beth Richie, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Many African-American grandmothers are entrapped by the cycle of incarceration in poor black communities. This Essay explores whether the social and economic conditions that compel battered women to commit crimes also impact their mothers - who end up raising the children they leave behind. Professor Beth Richie's theory of gender entrapment as described in her book, “Compelled to Crime,” is not limited to incarcerated women who have been victims of domestic violence. African-American grandmothers who take on the role of kinship caregivers for their grandchildren are also entrapped by a complex interplay of race, gender, and class, making them vulnerable …

An Empirical Analysis Of Wealth Disparities In Wto Disputes:
 Do Poorer Countries Suffer From Strategic Delay During Dispute Litigation?, Geoffrey Antell, James W. Coleman

Faculty Journal Articles and Book Chapters

A long-standing debate questions whether the World Trade Organization’s (“WTO”) formal dispute settlement procedures level the playing field for lower income countries in international trade disputes, or instead, merely give opportunistic and sophisticated countries complex rules that they can use to exploit these lower income countries. Using a database of cases decided under the WTO, this article examines whether there is evidence that developing countries suffer strategic delay when they sue developed countries. Strategic delay is a crucial consideration in WTO proceedings because, unlike in typical litigation, the WTO dispute settlement process does not offer backward-looking remedies. As a result, …

The Uncorporation And The Unraveling Of 'Nexus Of Contracts' Theory, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

This is a review of The Rise of the Uncorporation, by Larry E. Ribstein (Oxford University Press 2010). The Rise of the Uncorporation gives a compelling account of the increasing reliance on business forms other than the corporation. These new organizational forms - such as limited liability companies, limited liability partnerships, partnerships, and the like - give businesses greater freedom to structure themselves in ways that best facilitate their particular needs. And this, according to Ribstein, is an unqualified good, for it allows firms to operate more efficiently than if they were forced to assume an intensely regulated form.

Like …

A Medical Malpractice Model For Developing Countries?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article, written for the symposium "Reforming Medical Liability: Global Perspectives," evaluates the unique plight of developing countries in crafting medical liability regimes. Many developing countries struggle to maintain workable systems for adjudicating physician negligence. This is due to a variety of factors, such as widespread poverty, more pressing public health priorities that demand attention, a scarcity of physicians, immature health care systems, large informal health sectors, regulatory deficits, and weak civil societies, among others. Patients in these countries are also less able than their counterparts in well-developed countries to evaluate and challenge the care they receive and thus serve …

The Elusive Ideal Of Market Competition In U.S. Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This chapter, in the book Health Care and EU Law (TMC Asser Press 2011), explores how market competition has both driven and (somewhat ironically) undermined U.S. health reform efforts over the past few decades. More than its peers, the U.S. health care system looks to market-inspired theories and policy instruments, even in public programs like Medicare. But decades of promoting market ideals has not given Americans the health care system we desire. Still, the market question remains the basic dividing line in U.S. health policy.

This chapter explores how the U.S. health care system remains an international outlier, exploring American …

Enhanced "Blue Sky" Enforcement: A Path To Help Solve Our Public School Funding Dilemma, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

No abstract provided.

Wto-Compliant Protection Of Fundamental Rights: Lessons From The Eu Privacy Directive, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Nation states often create legislative schemes regulating services industries in order to protect fundamental rights such as human life, economic security, or human security. World Trade Organization members are constrained in their creation of such regulatory schemes by their obligations under the General Agreement on Trade in Services (‘GATS’). WTO members raised concerns about such constraints even before the creation of GATS. As a result, GATS contains clauses specifically designed to allow members enough regulatory latitude to protect important domestic social interests, such as fundamental rights, while simultaneously liberalising trade in services. WTO jurisprudence interpreting these clauses, however, has called …

Teaching Contract Law: Introducing Students To A Critical Perspective Through Discussion Of Indentured Servitude And Sharecropper Contracts, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

An introductory law school course in contract law, prior to commencing the detailed study of specific doctrines, should at the outset provide some general orientation to the students by presenting them with a broad overview of the conventional characterization of contract law as a benign social institution that facilitates private ordering and promisee reliance. However, this initial orientation to the underlying rationale of the subject should also expose the students to a contrasting and more critical perspective that calls attention to contract law’s occasional use as a means of social domination and oppression. A brief discussion of the history of …

Reasoning From Race: Feminism, Law, And The Civil Rights, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Two Sides Of The Combatant Coin: Untangling Direct Participation In Hostilities From Belligerent Status In Non-International Armed Conflicts, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

Determining who qualifies as a lawful object of attack in contemporary military operations against non-state belligerents is an increasingly demanding challenge. While it is axiomatic that only persons who qualify as either belligerents or civilians taking a direct part in hostilities fall into this category, the nature, and indeed goal, of counter-insurgencies blurs the line between civilians protected from deliberate attack and belligerents subject to attack. The difficulty in distinguishing the protected (civilians) from the unprotected (belligerents and civilians taking a direct part in hostilities) does not, however, warrant a fundamentally different targeting paradigm in counterinsurgency operations (a non-international armed …

Uspto Issues Supplementary Examination Guidelines Explaining The Requirement For Clarity In Patent Claims, W. Keith Robinson, Rouget Henschel

Faculty Journal Articles and Book Chapters

The US Patent and Trademark Office (USPTO) recently published Supplementary Examination Guidelines on the requirement that proper patent claims must allow the public to clearly distinguish what infringes from what does not. The Guidelines focus to some degree on computer-implemented inventions. The Guidelines acknowledge that computer implemented inventions have “unique examination issues.” But the Guidelines are important to patent applicants in all fields, perhaps more so in newer technologies with developing terminology, or where the invention is otherwise difficult to put into words.

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Journal Articles and Book Chapters

No abstract provided.

A Unified Approach To Extraterritoriality, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article develops a unified approach to extraterritoriality. It uses the source of lawmaking authority behind a statute to discern the proper canon for construing that statute’s geographic reach and to evaluate whether application of the statute violates due process.

The approach holds important implications for a variety of high-stakes issues with which courts are presently wrestling, including: the proper role of the presumption against extraterritorial application of U.S. law, whether international law or federal common law should supply the rule of decision in Alien Tort Statute cases, the scope of U.S. jurisdiction over terrorism offenses, and the viability of …

Embracing The New Geography Of Health Care: A Novel Way To Cover Those Left Out Of Health Reform, Nathan Cortez

Faculty Journal Articles and Book Chapters

Even after landmark health reform in 2010, our health care system will not achieve universal coverage. The Patient Protection and Affordable Care Act is expected to leave 23 million uninsured after a decade. And until several major provisions take effect in 2014, 50 million will remain uninsured. This Article argues that cross-border health insurance plans that utilize foreign medical providers are a surprisingly feasible alternative for the residually uninsured. Cross-border plans can be much less expensive than traditional, domestic-only plans. And they might appeal to immigrants and others that are neither eligible for public plans nor able to afford private …

Can Speech By Fda-Regulated Firms Ever Be Noncommercial?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article considers whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement.

I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various …

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, …

The Case Of Colonel Abel, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

In June 2010, journalists for the Associated Press reported the arrest of ten Russian spies, all suspected of being “deep-cover” illegal agents in the United States. Seeking to convey the magnitude of this event, the journalists wrote in the first paragraphs of their article that this “blockbuster series of arrests” might even be as significant as the FBI’s “famous capture of Soviet Col. Rudolf Abel in 1957 in New York.” Colonel Abel’s story of American justice at a time of acute anxiety about the nation’s security is one that continues to resonate today. The honor, and error, that is contained …

The Uc-Irvine Experiment: Will It Be Effective At Teaching Contract Law?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

The new law school at the University of California, Irvine is attempting to implement an innovative vision of top-tier legal education that focuses upon preparing students for the practice of law, and which emphasizes skills-based and experiential training. As part of that effort the school has restructured the traditional first-year law school curriculum so that several of the courses each focus on particular analytical methods, specifically common law analysis, statutory analysis, procedural analysis, constitutional analysis, and international legal analysis, rather than on a particular subject matter such as contracts, torts, etc. While there are some advantages to this new approach, …

The Trillion Dollar Problem Of Underwater Homeowners: Avoiding A New Surge Of Foreclosures By Encouraging Principal-Reducing Loan Modifications, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

There are currently well over ten million underwater homeowners whose mortgage obligations exceed the current value of their houses, with an aggregate negative equity position of at least $800 billion and possibly over $1 trillion. The overwhelming majority of these persons continue to make their mortgage payments even though for many their interests would be better served by defaulting. This is therefore an unstable situation that could suddenly erupt with a rapid cascade of millions of strategic defaults, potentially triggering severe macroeconomic dislocations. It is urgent that this situation be defused through the modification of the mortgages of a large …

Mortgage Modification And Strategic Behavior: A Contrarian Reading Of The Countrywide Financial Corporation Settlement, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Christopher Mayer, Edward Morrison, Thomas Piskorski and Arpit Gupta of Columbia University have recently published in the Law and Finance eJournal a comprehensive study demonstrating the significant impacts on strategic default rates of the widely publicized Countrywide Financial Corporation settlement of 2008. While their study is a solid and convincing descriptive effort, their implicit assumption that strategic defaults are something to be discouraged rather than encouraged, a position that I have criticized in my earlier work, undercuts the usefulness of their work for policy guidance. From their perspective the Countrywide settlement provides a cautionary tale about difficult trade-offs to be …

Mortgage Modification And Strategic Behavior: A Contrarian Interpretation Of The Countrywide Financial Corporation Settlement, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Christopher Mayer, Edward Morrison, Thomas Piskorski and Arpit Gupta of Columbia University have recently published in the Law and Finance eJournal a comprehensive study demonstrating the significant impacts on strategic default rates of the widely publicized Countrywide Financial Corporation settlement of 2008. While their study is comprehensive and carefully done, their implicit assumption that strategic defaults are something to be discouraged rather than encouraged, a position that I have criticized in my earlier work, undercuts the usefulness of their work for policy guidance. From their perspective the Countrywide settlement provides a cautionary tale about difficult trade-offs to be faced in …