Law Commons^™

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

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In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

The Value Of Giving Away Secrets, Oren Bar-Gill, Gideon Parchomovsky

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This Essay demonstrates the strategic advantage of narrow patents and unprotected publication of R&D output. Broad patents might stifle follow-on improvements by deterring potential cumulative innovators, who fear being held up by the initial inventor at the ex post licensing stage. By opting for a narrower patent and unprotected publication, the initial patent holder commits not to hold up follow-on inventors, thus promoting sequential innovation and generating lucrative licensing fees. Counterintuitively, in cumulative innovation settings, less protection benefits the patentee. This finding may serve as a counter-force to the much-lamented "anti-commons" problem. More generally, our theory demonstrates that the divergence …

The A.L.I.'S Proposed Distributive Principle Of 'Limiting Retributivism': Does It Mean In Practice Anything Other Than Pure Desert?, Paul H. Robinson

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Robinson supports the proposed "purposes" text of the New American Law Institute Report on Sentencing Reform but argues that in practice it will not mean what traditional utilitarians, like those supporting "limiting retributivism," are expecting. First, the proposed text allows reliance upon non-desert distributive principles only to the extent that they serve their stated goals. As the ALI Report concedes, there are limits to the effectiveness one can expect from rehabilitation and, as is now becoming apparent from social science research, our realistic expectations for the effectiveness of deterrence are similarly fading. It is true that incapacitation undoubtedly works to …

Can A Model Penal Code Second Save The States From Themselves?, Paul H. Robinson, Michael T. Cahill

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Other contributors to this Symposium suggest a variety of changes to the Model Penal Code that they think justify producing a Model Penal Code Second. We offer such suggestions elsewhere. We want to use this space to discuss a slightly different, but related, subject: the need for, and potential effect of, a Model Penal Code Second as a spur to reforming current American criminal codes. Probably the most important point we can contribute is to make clear that current American criminal codes are in serious trouble. About one-third of the states never adopted a modern criminal code during the codification …

Light From Dead Stars: The Procedural Adequate And Independent State Ground Reconsidered, Kermit Roosevelt Iii

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No abstract provided.

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

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The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by which …

Final Report Of The Kentucky Penal Code Revision Project, Paul H. Robinson, Kentucky Criminal Justice Council Staff

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The Kentucky Criminal Justice Council, a constitutional body in Kentucky, undertook this project to examine the problems with Kentucky criminal law and to rewrite the Kentucky criminal code. This two-volume Final Report of the Kentucky Penal Code Revision Project proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and …

Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman

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Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …

Toward A Multiple Party Representation Model: Moderating Power Disparity, Henry Ordower

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Argues that the zealous representation model of contemporary legal practice with its emphasis on primacy of the client causes lawyers to assist and motivate their clients to exploit the clients' power advantages in non-litigation contexts. The article recommends that ethical rules shift to a multiple client representation model. The model would be based upon the Brandeisian "lawyer for the situation" and would empower attorneys in non-litigation settings to consider and evaluate the impact of their activities on other constituencies that the representation affects. Attorneys would become better able to encourage their clients to seek distributional fairness and balance in their …

Brown V. Board Of Education: 50 Years Later, Dana M. Malkus

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In Brown v. Board of Education, the U.S. Supreme Court unanimously concluded that the doctrine of “separate but equal” had no place in public education. That decision on May 17, 1954 initiated educational reform throughout the country and was a catalyst in launching the modern Civil Rights movement. Though Brown signaled the beginning of the end of de jure segregation in the United States, events since reveal that – one-half century later – the work is far from complete. On Friday, October 10, 2003, scholars, students, and practitioners joined together at Saint Louis University School of Law for a full-day …

Aligning Incentives With Equity: Employee Stock Options And Rule 10b-5, Matthew T. Bodie

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When the Internet boom was in full swing and the stock markets skyrocketed to new levels, companies new and old used stock options to attract and retain employees. Implicit in those options was the promise that employees could participate in the growth of a company's value. However, as the scandals involving WorldCom, Enron, and Global Crossing demonstrate, corporate managers were not always honest with employees or public investors about the company's true value. Public investors can seek civil remedies for securities fraud through a private action under the Securities and Exchange Commission's Rule 10b-5. The Rule's purchase or sale requirement, …

Walking The Talk Of Trust In Human Subjects Research: The Challenge Of Regulating Financial Conflicts Of Interest, Robert Gatter

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There has been a call for more stringent regulation of financial conflicts of interest in human subjects research following the deaths of several individuals who volunteered to participate in human subjects research, which deaths were linked to the financial conflicts of interest of participating researchers and research institutions. Each proposal argues that regulation is necessary to restore trust in medical research. This Article examines whether proposed strategies for regulating financial conflicts of interest are likely to achieve the goal of a trustworthy human research enterprise. It does not question whether enhancing trustworthiness is an appropriate goal; rather, it assumes that …

Civil Rights Litigation: The Current Paradox, David Rudovsky

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No abstract provided.

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

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The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash

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Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the …

Turf Struggles: Land, Sovereignty, And Sovereign Immunity, Catherine T. Struve

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No abstract provided.

Exhaustion Under The Prison Litigation Reform Act: The Consequence Of Procedural Error, Kermit Roosevelt Iii

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No abstract provided.

New Models Of Regulation And Interagency Governance, Christopher S. Yoo

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No abstract provided.

Access To Networks: Economic And Constitutional Connections, Daniel F. Spulber, Christopher S. Yoo

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A fundamental transformation is taking place in the basic approach to regulating network industries. Policy makers are in the process of abandoning their century-old commitment to rate regulation in favor of a new regulatory approach known as access regulation. Rather than controlling the price of outputs, the new approach focuses on compelling access to and mandating the price of inputs. Unfortunately, this shift in regulatory policy has not been met with an accompanying shift in the manner in which regulatory authorities regulate prices. Specifically, policy makers have continued to base rates on either historical or replacement cost. We argue that …

The Securities Analyst As Agent: Rethinking The Regulation Of Analysts, Jill E. Fisch, Hillary A. Sale

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Recent press has highlighted shocking examples of bias, self-dealing, and inaccuracy in the behavior of the securities analyst. Critics have attributed the bubble and subsequent crash in the technology sector to analyst hype and posited that undue analyst optimism contributed to scandals such as Enron. After many years of minimal regulator oversight analysts are now the subject of extensive regulatory reform proposals, including a mandate in the Sarbanes-Oxley Act of 2002 requiring that the Securities and Exchange Commission adopt a variety of restrictions on analyst behavior.

Despite the media attention, there have been few attempts to conceptualize carefully the analyst's …

Judicial Independence In Family Courts, Barbara A. Babb, Judith D. Moran

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No abstract provided.

A Unified Family Court, Barbara A. Babb

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No abstract provided.

Public Importance: Balancing Proprietary Rights And The Right To Know, Eric Easton

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Articulating a coherent, all-encompassing First Amendment doctrine for freedom of speech and of the press has so far eluded every scholar who has tried, not least because of the variety of analytical approaches and potentially dispositive factors in Supreme Court jurisprudence. For example, the same regulation might be enforceable in one medium, but not another; in one forum, but not another. Enforceability may depend on the regulator's purpose and drafting skill, or not, depending in turn on whether the speech deserves full protection, some protection, or no protection at all. Sometimes enforceability depends on the speaker's intent, or knowledge, or …

Accountability In The Aftermath Of Rwanda's Genocide, Jason Strain, Elizabeth Keyes

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Over the span of 100 days in 1994, almost one million Rwandans died in a genocide that left Rwandan society traumatized and its institutions in disarray. The genocide implicated not only the actual instigators and killers, who came from all levels of Rwandan society, but also the culture of impunity that had thrived in Rwanda for decades. This culture of impunity and inaction in the face of atrocities eerily mirrored the international community's failure to intervene to prevent or respond to the genocide. The genocide provoked a process of reflection within Rwanda and the broader international community about how the …

Options To Acquire Partnership Interests: Can The Tax Law Keep Pace?, Walter D. Schwidetzky

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It has become increasingly common for partnerships to issue options that give the holder the right to acquire an interest in the partnership for a set price. The holder of the option will exercise it if he feels that the partnership interest to be acquired is worth more than the exercise price. There is a dearth of authority on the federal tax treatment of option transactions, and the Service has recently asked for guidance from the tax bar as to what approach it should take. This article focuses on one piece of the partnership option puzzle, options to acquire partnership …

Products Liability Harmonization: A Uniform Standard, Rebecca Korzec

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Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule’s impact remains within that state’s geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. …

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

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In its recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act, and specifically the questions of who should be protected under the ADA, and what such protection requires. In the wake of the Court's decisions, workers have found it increasingly difficult to assert and protect their right to be free of disability-based discrimination in the workplace. Given the widespread influence of John Rawls in contemporary discussions of social, political and economic justice, his recent and final formulation of his theory of distributive justice presents a significant and promising philosophical foundation for evaluation of …