Law Commons^™

The Vitality Of Joint And Several Liability: Brief Amici Curiae Of American Law Professors In Support Of Respondents, Richard W. Wright

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Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment …

The Architecture Of The International Intellectual Property System, Graeme Dinwoodie

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No abstract provided.

The Rational Limits Of Trademark Law (Plus 2005 Postscript), Graeme Dinwoodie

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No abstract provided.

Trademark And Copyright: Complements Or Competitors?, Graeme Dinwoodie

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No abstract provided.

Towards An Integrated Theory Of Intellectual Property, Gideon Parchomovsky, Peter Siegelman

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This Article addresses a curious gap in the theory of intellectual property. One of the central dogmas in both the legal and economic literatures is that patents, copyrights and trademarks constitute separate forms of protection, each serving different purposes and designed to operate independently of the others. By challenging this dogma, however, this Article shows that certain combinations of intellectual property protection give rise to important synergies. When a patentee can develop brand loyalty among its customers, the existence of trademark protection allows her to extend its protection even after her patent expires, and thereby earn higher profits than would …

Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner

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Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …

Comment: Federalism And Two Conceptions Of Rights, Christopher J. Peters

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No abstract provided.

Dangerous Liaisons: Corporate Law, Trust Law, And Interdoctrinal Legal Transplants, Edward B. Rock, Michael L. Wachter

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No abstract provided.

Securities Regulation As Lobster Trap: A Credible Commitment Theory Of Mandatory Disclosure, Edward B. Rock

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No abstract provided.

Mens Rea, Paul H. Robinson

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Mens Rea, or “guilty mind,” marks a central distinguishing feature of criminal law. An injury caused without mens rea might be grounds for civil liability but typically not for criminal. Criminal liability requires not only causing a prohibited harm or evil -- the “actus reus” of an offense -- but also a particular state of mind with regard to causing that harm or evil. For a phrase so central to criminal law, “mens rea” suffers from a surprising degree of confusion in its meaning. One source of confusion arises from the two distinct ways in which the phrase is used, …

Corporate Ownership Structure And The Evolution Of Bankruptcy Law: Lessons From The United Kingdom, John Armour, Brian R. Cheffins, David A. Skeel Jr.

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No abstract provided.

How Apprendi Affects Institutional Allocations Of Power, Stephanos Bibas

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No abstract provided.

When Voluntary, Incentive-Based Controls Fail: Structuring A Regulatory Response To Agricultural Nonpoint Source Water Pollution, Douglas R. Williams

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This article is part of the Symposium, Sustainable Agriculture: Food for the Future. Recognizing that, to date, farms had largely escaped regulation under the Clean Water Act, and that agricultural nonpoint source pollution is a leading contributor to impaired water quality, this article advocates for a regulatory response to such pollution. It considers existing programs to control nonpoint source pollution and demonstrates that they are inadequate. The article makes three recommendations: (1) an increased federal regulatory presence is needed; (2) the costs of implementing nonpoint source controls should be distributed in a pragmatic way that recognizes the extraordinary organizational presence …

Persecution In The Fog Of War: The House Of Lords' Decision In Adan, Michael Kagan, William P. Johnson

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International law requires that a person have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group in order to be recognized as a refugee. That is, under the Convention Relating to the Status of Refugees, there must be a nexus between the danger faced by the refugee and one of the five Convention-recognized reasons for persecution. However, in a 1998 decision of the House of Lords in the United Kingdom, the House of Lords concluded that a man fleeing clan warfare in Somalia could not meet the nexus …

Disability, Doctors And Dollars: Distinguishing The Three Faces Of Reasonable Accommodation, Elizabeth Pendo

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Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.

One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over …

The Jury's Role In Administering Justice In The U.S. Introduction To Saint Louis Public Law Review Jury Issue, Stephen C. Thaman

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This introduction to the special jury issue of Saint Louis University’s Public Law Review briefly discusses the Conference “Lay Participation in the Criminal Trial in the Twenty-First Century,” in which all of the contributors to this issue participated. The conference took place at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy from May 25-29, 1999. It also discusses select papers and perspectives on the American jury system published in this issue of the journal.

Official Privilege: State Security And The Right To A Fair Trial In The Usa, Stephen C. Thaman

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The emphasis of this paper is on the effect of the state claiming a privilege of national security in a criminal case, either to: (1) prevent the defendant from gaining discovery of classified information which could be important in defending against the criminal charges; or (2) prevent the defendant from introducing classified evidence in his/her own defense, access to which has usually been gained by virtue of the defendant’s own activity with the intelligence services (CIA, FBI) or other police agencies. The state often claims national security in situations where the state itself is either dealing with criminals or using …

Latin America's First Modern System Of Lay Participation: The Reform Of Inquisitorial Justice In Venezuela, Stephen C. Thaman

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This article describes the new Venezuelan jury and mixed court systems that were introduced by Codigo Organico Procesal Penal in 1998, in the context of the code’s radical transition to accusatorial and adversarial procedure.

Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea

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This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, …

Enron And The Dark Side Of Shareholder Value, William W. Bratton

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No abstract provided.

An International Constitutional Moment, William W. Burke-White, Anne-Marie Slaughter

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No abstract provided.

Human Rights, Civil Wrongs And Foreign Relations: A "Sinical" Look At The Use Of U.S. Litigation To Address Human Rights Abuses Abroad, Jacques Delisle

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No abstract provided.

Welfare Reform And Families In The Child Welfare System, Morgan B. Ward Doran, Dorothy E. Roberts

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No abstract provided.

''Step On A Crack, Break Your Mother's Back'': Poor Moms, Myths Of Authority, And Drug-Related Evictions From Public Housing, Regina Austin

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No abstract provided.

Criminal Law Scholarship: Three Illusions, Paul H. Robinson

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The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of …

Don't Abandon The Model Penal Code Yet! Thinking Through Simons's Rethinking, Kimberly Kessler Ferzan

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No abstract provided.

The Paradox Of Delegation: Interpreting The Federal Rules Of Civil Procedure, Catherine T. Struve

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No abstract provided.

Liberal Ideals And Political Feasibility: Guest-Worker Programs As Second-Best Policies, Howard F. Chang

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No abstract provided.

Pliability Rules, Abraham Bell, Gideon Parchomovsky

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In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Law And Justice In The Twenty-First Century, Geoffrey C. Hazard Jr.

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No abstract provided.