Law Commons^™

After Intersectionality, Robert S. Chang, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Terrorism, The Use Of Force And International Law After 11 September, Michael Byers

Faculty Scholarship

No abstract provided.

Abuse Of Rights: An Old Principle, A New Age, Michael Byers

Faculty Scholarship

No abstract provided.

Comparing Precaution In The United States And Europe, Jonathan B. Wiener, Michael D. Rogers

Faculty Scholarship

The regulation of health and environmental risks has generated transatlantic controversy concerning precaution and the precautionary principle (PP). Conventional wisdom sees the European Union endorsing the PP and proactively regulating uncertain risks, while the United States opposes the PP and waits for evidence of harm before regulating. Without favouring either approach, this paper critically analyses the conventional depiction of transatlantic divergence. First, it reviews several different versions of the PP and their different implications. Second, it broadens the transatlantic comparison of precaution beyond the typical focus on single-risk examples, such as genetically modified foods. Through case studies, including hormones in …

Selecting Pennsylvania Judges In The Twenty-First Century, Paul D. Carrington, Adam R. Long

Faculty Scholarship

No abstract provided.

Whirlwind Tour Of The Internal Revenue Code’S At-Risk And Passive Activity Loss Rules, Lawrence A. Zelenak, Boris I. Bittker, Martin J. Mcmahon

Faculty Scholarship

No abstract provided.

The Allocation Of Resources By Interest Groups: Lobbying, Litigation And Administrative Regulation, John M. De Figueiredo, Rui J.P. De Figueiredo Jr.

Faculty Scholarship

One of the central concerns about American policy making institutions is the degree to which political outcomes can be influenced by interested parties. While the literature on interest group strategies in particular institutions - legislative, administrative, and legal - is extensive, there is very little scholarship which examines how the interdependencies between institutions affects the strategies of groups. In this paper we examine in a formal theoretical model how the opportunity to litigate administrative rulemaking in the courts affects the lobbying strategies of competing interest groups at the rulemaking stage. Using a resource-based view of group activity, we develop a …

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

The Process Of Managing Medical Malpractice Cases: The Role Of The Standard Of Care, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris

Faculty Scholarship

In medical malpractice litigation, how the standard of care is determined is of obvious importance, since failure by a defendant-physician to meet the relevant standard of care constitutes negligence. Any effort to reform how standard-of-care determinations are made should start with an understanding of the entire claims resolution process. The usual image--that of opposing experts testifying at trial--is both incomplete and misleading. Most cases are either settled by the parties or abandoned by the plaintiff, short of trial. We reviewed insurers' closed claims files, representing a sample of medical malpractice lawsuits filed in North Carolina between 1991 and 1995, as …

The Alien Tort Statute And Article Iii, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Genetic Interventions: (Yet) Another Challenge To Allocating Health Care, Arti K. Rai

Faculty Scholarship

No abstract provided.

The Income Tax And The Costs Of Earning A Living, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Pharmacogenetic Interventions, Orphan Groups, And Distributive Justice: The Role Of Cost-Benefit Analysis, Arti K. Rai

Faculty Scholarship

No abstract provided.

Self-Deregulation, The “National Policy” Of The Supreme Court, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Of Course Ideology Should Matter In Judicial Selection, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Protecting Member State Autonomy In The European Union: Some Cautionary Tales From American Federalism, Ernest A. Young

Faculty Scholarship

The European Union's ongoing "Convention on the Future of Europe" must tackle a fundamental issue of federalism: the balance between central authority and Member State autonomy. In this article, Ernest Young explores two strategies for protecting federalism in America - imposing substantive limits on central power and relying on political and procedural safeguards - and considers their prospects in Europe. American experience suggests that European attempts to limit central power by enumerating substantive "competencies" for Union institutions are unlikely to hold up, and that other substantive strategies such as the concept of "subsidiarity" tend to work best as political imperatives …

U.S. Announces Intent Not To Ratify International Criminal Court Treaty, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Sovereign Bonds And The Collective Will, Lee C. Buchheit, G. Mitu Gulati

Faculty Scholarship

No abstract provided.

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Book Review, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Database Protection In A Global Economy, Jerome H. Reichman

Faculty Scholarship

In 1996, a database treaty that the European Commission had put forward, in connection with the WIPO negotiations on transmissions in cyberspace, ultimately failed to win the support of other regional groups. Since then, the inability of the United States Congress to enact any form of database legislation has stymied further multilateral undertakings on this topic. This impasse may soon be broken, however, owing to the change of Administrations and to the appointment of new committee chairmen in the United States House of Representatives.

This article will discuss the prospects for an international regulatory framework for non copyrightable databases in …

Sorting Out The Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

No abstract provided.

Overlegalizing Human Rights: International Relations Theory And The Commonwealth Caribbean Backlash Against Human Rights Regimes, Laurence R. Helfer

Faculty Scholarship

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty's substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand …

Income Distribution Dynamics With Endogenous Fertility, Daniel L. Chen, Michael Kremer

Faculty Scholarship

Developing countries with highly unequal income distributions, such as Brazil or South Africa, face an uphill battle in reducing inequality. Educated workers in these countries have a much lower birth rate than uneducated workers. Assuming children of educated workers are more likely to become educated, this fertility differential increaases the proportion of unskilled workers, reducing their wages, and thus their opportunity cost of having children, creating a vicious cycle. A model incorporating this effect generates multiple stedy-state levels of inequality, suggesting that in some circumstances, temporarily increasing access to educational opportunities could permanently reduce inequality. Empirical evidence suggests that the …

Giants In A World Of Pygmies? Testing The Superstar Hypothesis With Judicial Opinions In Casebooks, Mitu Gulati, Veronica Sanchez

Faculty Scholarship

No abstract provided.

When A Workers’ Cooperative Works: The Case Of Kerala Dinesh Beedi, Mitu Gulati, T. M. Thomas Isaac, William A. Klein

Faculty Scholarship

The literature on worker cooperatives is dominated by explanations of why they do not work and why, accordingly, they are so rare. This article presents a case study of a large worker cooperative in South India that has worked well for a long time. This cooperative illustrates, among other things, that worker control and worker democracy are not necessarily inconsistent with the degree of hierarchy and delegation that may be essential to effective operation. The cooperative has been able to compete despite paying wages and benefits that are dramatically higher than those paid by its competitors, while at the same …

How Should We Think About Bush V. Gore?, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Lost In The Translation: What Environmental Regulation Does That Tort Cannot Duplicate, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Retributive Justice: Its Social Context, Neil Vidmar

Faculty Scholarship

Until relatively recently, social psychologists have given less attention to retributive justice than to other forms of justice, such as distributive and procedural justice. Although interest in retributive justice is increasing, the fact remains that social psychological research on retribution has tended to ignore, or at least downplay, the insights of sociologists in deference to an approach that examines how individuals respond to deviant acts. Without rejecting psycholgical analyses, this chpater draws attention to the social context and social consequences of retributive justice. Group dynamics are at play in a wide array of settings in which people respond to rule …

Restrictions On The Speech Of Judicial Candidates Are Unconstitutional: A Reply To Professor O’Neil, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.