Law Commons^™

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Faculty Scholarship

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is divorced …

International And Comparative Aspects Of Trademark Dilution, Mark D. Janis, Peter K. Yu

Faculty Scholarship

Extract:

In the United States, trademark antidilution protection is back—maybe. Proposed by Frank Schechter in the 1920s, adopted in various incarnations in some states over the next few decades, and ultimately introduced in a slightly different form in federal trademark law in 1995, the dilution provisions drew a cool reception in the courts. By the late 1990s, an increasingly restive judiciary was constraining the federal dilution provisions in various ways, most notably by requiring mark owners to prove actual dilution in order to establish liability, a requirement endorsed by the United States Supreme Court in Moseley v. V Secret Catalogue, …

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr

Faculty Scholarship

In their book, Patent Failure: How Judges, Bureaucrats, and Lauyers Put Innovators at Risk, James Bessen and Michael Meurer present an empirical assessment of the costs and benefits of patent protection. Their conclusion is startling. For most industries, the availability of patents discourages innovation.

According to Bessen and Meurer, patents benefit innovators by providing exclusivity and thereby enabling an innovator to capture more rents or profits from their innovation than they could with lead-time or other market mechanisms alone. While innovators can obtain rents from their own Patents, they also face the threat of infringement litigation from Patents held by …

The Emerging Importance Of "Social Visibility" In Defining A "Particular Social Group" And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

Faculty Scholarship

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immutable" characteristic," one …

Congress Should Engage In Sentencing Review: Some Ideas For The 111th Congress, Lisa A. Rich

Faculty Scholarship

Since the Booker decision, Congress has demonstrated, for the most part, remarkable restraint against "tinkering" with the system, a fact owed in large measure to the efforts of the United States Sentencing Commission to keep Congress informed about federal sentencing trends. The Commission has done an admirable job in turning around its data collection, analysis, and reporting functions to provide Congress, and the entire criminal justice system, with useful statistics and information that suggest the system is not falling apart. For example, the Commission's efforts demonstrate, as Frank Bowman noted, that the average sentence in federal cases did rise between …

Common Grounds, Common Waters: Towards A Water Ethic - Roundtable Discussion, Gabriel Eckstein, Irene Klaver

Faculty Scholarship

The purpose of this roundtable discussion is to continue the dialogue but in a more informal setting, and to allow people to develop some of the ideas and concepts that they started earlier but could not finish because of the time limits.

It is also to get the audience and the panelists to ask questions of each other and to participate in more of a dialogue. To start this discussion I want to raise, at least to the panelists, this issue of wants versus needs, and I am actually going to add one more-versus rights-because I thought that was very …

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Tales Of Two Regimes For Regulating Limited Liability Law Firms In The Us And Australia: Client Protection And Risk Management Lessons, Susan Saab Fortney

Faculty Scholarship

This essay contrasts the regimes that allow limited liability partnerships in the US and fully incorporated legal practices in Australia. The essay argues that Australia has taken advantage of an opportunity to develop innovative and necessary regulation of law firm ethical infrastructure with the introduction of incorporated legal practices, but the United States has not yet adequately addressed the consumer and ethical risks of limited liability partnerships. This essay raises the issue of whether Australia’s requirement that incorporated law firms should implement “appropriate management systems” to ensure ethical conduct is a model that could fruitfully be applied to all law …

New Paradigms For Protection Of Biodiversity, Srividhya Ragavan

Faculty Scholarship

The most successful bioprospecting venture was established in 1989 in Costa Rica. Interestingly, the distinction of being a forerunner in exploiting bioprospecting goes to India. In 1979, a full decade before Costa Rica, India established the TBGRI (Tropical Botanic Garden and Research Institute) at Trivandrum.

Yet, the TBGRI venture with the Kani Tribes, which had the potential to become a beacon of bioprospecting success, is showcased as the exemplar of failure. In this era of trade regime, the following paper asserts, bioprospecting ventures are important tools for developing countries. Countries like India and organizations like the TBGRI should learn from …

Problems Facing The First Generation Of Local Immigration Laws, Huyen Pham

Faculty Scholarship

Colorado made national headlines in 2006 when it passed a series of controversial measures requiring applicants for most state benefits to prove legal immigration status before obtaining that benefit. Signed by out-going Governor Bill Owens, the law makes proof of legal immigration status a prerequisite to obtaining most forms of public assistance (for example, disability payments) and state-issued licenses for professionals and commercial enterprises (for example, licenses for insurance agents and physicians). The law also requires Colorado employers to verify their employees' legal immigration status or risk hefty fines (up to $5000 for a first offense and up to $25,000 …

The Carrot Approach To Accounting Standard Setting, Neal Newman

Faculty Scholarship

In December 2006, Conrad Hewitt, the chief accountant at the Securities and Exchange Commission (SEC), promised that the issue of complexity in accounting would be addressed early in 2007 and would be a leading focus of work by his office in 2007. The goal in financial reporting is to disseminate transparent, understandable, financial information that fairly presents the financial condition of the reporting company. Oftentimes, however the information public companies disseminate is overly complex, quagmired in legalistic form at the expense of true economic substance, and is devoid of conveying true, meaningful and understandable information regarding the company.

In this …

Cultural Relics, Intellectual Property, And Intangible Heritage, Peter K. Yu

Faculty Scholarship

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken …

Conflict Of Laws (2008), James P. George, Stephanie K. Marshall

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2006, through September 30, 2007. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

The Objective Theory Of Contracts, Wayne Barnes

Faculty Scholarship

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Access To Medicines, Brics Alliances, And Collective Action, Peter K. Yu

Faculty Scholarship

Most discussions on the public health implications of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights focus on the right of less developed countries to issue compulsory licenses and the need for these countries to exploit flexibilities within the TRIPs Agreement. However, there are other means by which countries can enhance access to essential medicines. To provide an illustration of these other means, this article explores the possibility for greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries.

This article begins by offering a brief …

Erisa, Agency Costs, And The Future Of Health Care In The United States, John Bronsteen, Brendan S. Maher, Peter K. Stris

Faculty Scholarship

Because so many Americans receive health insurance through their employers, the Employee Retirement Income Security Act of 1974 (ERISA) plays a dominant role in the delivery of healthcare in the United States. The ERISA system enables employers and insurers to save money by providing inadequate healthcare to employees, thereby creating incentives for these agents to act contrary to the interests of their principals. Such agency costs play a significant role in the current healthcare crisis and require attention when considering reform. We evaluate the two major healthcare reform movements by exploring the extent to which each reduces agency costs. We …

Slaves For Rent: Sexual Harassment In Housing As Involuntary Servitude, Aric K. Short

Faculty Scholarship

Recognizing the various shortcomings of the FHA when applied in the context of post-acquisition harassment in general, and sexual harassment in particular, this Article explores an alternative vehicle for victims of such abuse: the Thirteenth Amendment. Ratified in 1865, the Thirteenth Amendment provided a formal legal end to African chattel slavery across the United States. But the Thirteenth Amendment has legal importance beyond the abolition of slavery. The Amendment was and remains both a powerful liberating force and a guarantor of fundamental rights for all Americans. In particular, the text of the Thirteenth Amendment extends its reach beyond slavery to …

Examples Of The Political Character Of International Water Law, Gabriel E. Eckstein

Faculty Scholarship

It is widely known that over a billion people lack access to potable water, and well over twice that number are without adequate sanitation'-the latter situation often being related to the former. It has been calculated that every eight seconds a child dies of water-related causes-a stunning statistic and an absolutely unacceptable state of affairs.

While much has been made of the prospect of global water shortages, what is perhaps not so well known is that most of the world's fresh water is shared by two or more states. There are more than 260 international drainage basins, which account for …

The Private Enforcement Of Immigration Laws, Huyen Pham

Faculty Scholarship

To be sure, the lion's share of immigration enforcement still rests with government authorities. But there is a growing trend to shift some enforcement responsibilities onto private parties. With the passing of the Immigration Reform and Control Act of 1986 (IRCA), Congress took the significant step of requiring employers to check the immigration status of all employees in order to verify their work eligibility. For the first time nationwide, private parties were required to deny a benefit--here, employment--based on immigration status. In effect then, IRCA required employer's to enforce the employment provisions of federal immigration laws. medical care providers, and …

Copyright's Price Discrimination Panacea, Glynn S. Lunney Jr

Faculty Scholarship

According to the conventional wisdom, price discrimination offers two advantages compared to uniform or linear pricing in the production of copyrighted works. First, it can reduce the deadweight losses otherwise associated with the higher prices that copyright makes possible. Second, it can increase the producer surplus or rents associated with the production of any given copyrighted work and thus ensure the expected profitability of a wider range of works. This increase in profitability should, in turn, lead to the production of more copyrighted works. If the conventional wisdom is right, then the proper response would be not merely to tolerate, …

El Precia Del Agua [Pricing Water], Carlos Gómez-Ligüerre, Vanessa Casado-Pérez, Ignacio Marín-García

Faculty Scholarship

En España, como en otros muchos países, el agua es un recurso escaso que se asigna ineficientemente. El Estado es su propietario y la asigna a precios políticos e inadecuados. Mientras que la agricultura absorbe dos tercios de este preciado bien, los hogares y la industria consumen sólo el 18 y el 13 % respectivamente. Este trabajo propone la creación de un mercado de derechos sobre el agua controlado por una agencia estatal, pues los costes de transacción son tan elevados que el resultado alcanzado a través de la negociación libre entre las partes no sería eficiente.

In Spain, as …

What If, After All, Trademarks Were Traded In Gross, Irene Calboli

Faculty Scholarship

The conditions upon which trademarks should be "traded" --that is, assigned and licensed in the marketplace--have traditionally been at the center of the trademark debate. Historically, based upon the assumption that trademarks can be protected only as conveyers of commercial information and as symbols of business goodwill, trademark law has prohibited trading in trademarks "in gross" and has required that trademarks be assigned "with their goodwill" and licensed only as long as licensors control the quality of the products. Yet, these criteria have been proven controversial and difficult to enforce because they hinge on two concepts that are ambiguous and …

Teaching International Intellectual Property Law, Peter K. Yu

Faculty Scholarship

Intellectual property law was in the backwater only a few decades ago. The Section on Intellectual Property Law of the Association of American Law Schools was not even founded until the early 1980s, and the creation of intellectual property specialty programs has been only a recent phenomenon. As senior legal scholars reminisce, early in their career, they would have been lucky to find a school that would allow them to teach a class on intellectual property law. Although intellectual property law teaching has come of age in the past decade, international intellectual property law courses remain nonexistent in more than …

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, Peter K. Yu

Faculty Scholarship

The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and significance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of …

What Ifs And Other Alternative Intellectual Property And Cyberlaw Stories: Foreword, Peter K. Yu

Faculty Scholarship

Extract:

The topic of this Symposium is “What Ifs and Other Alternative Intellectual Property and Cyberlaw Stories.” The inspiration for this topic came from two different sources. The first half of the idea came to me when I was shopping in a bookstore in Hong Kong a few years ago. Around the turn of the millennium, military historian Robert Cowley put together a volume of essays with an eye-catching title, What If?TM: The World’s Foremost Military Historians Imagine What Might Have Been. 1 Although I am not a fan of military history, the book caught my attention in the bookstore …