Law Commons^™

Civil Liberties V. National Security In The Law's Open Areas, Geoffrey R. Stone

Articles

No abstract provided.

'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz

Articles

This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards on commercial trucks …

Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Articles

Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.

The Law Of Other States, Eric A. Posner, Cass R. Sunstein

Articles

The question of whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread belief accepted by a number of independent actors, is highly likely to be correct. It follows that if a large majority …

Information Asymmetries And The Rights To Exclude, Lior Strahilevitz

Articles

No abstract provided.

The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls

Articles

Considerable attention has been given to the Implicit Association Test (IA T), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of "debiasing …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

Creating A Framework For A Single European Sky:The Opportunity Cost Of Reorganising European Airspace, Niall Neligan

Articles

The object of this article is to critically evaluate the legal framework for a European Single Sky project in light of the recent European Court of Justice decision in International Air Transport Association v The Department of Transport. The article will examine in detail the framework regulations outlining the major provisions from the recommendations of the Commission's High Level Group in 2000, to the implementation at a micro-level by national authorities of the legislation adopted in 2004. Furthermore, this article will examine whether the savings to air service providers from the Single European Sky project in the long term will …

"Nine, Of Course": A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, Peter Nicolas

Articles

Conventional wisdom seems to hold that Congress has the power to set, by statute, the number of justices on the United States Supreme Court. But what if conventional wisdom is wrong? In this Dialogue, I challenge the conventional wisdom, hypothesizing that the United States Constitution does not give Congress the power to enact such a statute. Under this hypothesis, the number of justices on the Supreme Court at any given time is to be determined solely by the President and the individual members of the United States Senate in exercising their respective powers of nominating justices and consenting to their …

After Autonomy, Carl E. Schneider

Articles

Bioethicists today are like Bolsheviks on the death of Lenin. They have, rather to their surprise, won the day. Their principle of autonomy is dogma. Their era of charismatic leadership is over. Their work of Weberian rationalization, of institutionalizing principle and party, has begun. The liturgy is reverently recited, but the vitality of Lenin's "What Is To Be Done?" has yielded to the vacuity of Stalin's "The Foundations of Leninism." Effort once lavished on expounding ideology is now devoted to establishing associations, organizing degree programs, installing bioethicist commissars in every hospital, and staffing IRB soviets. Not-so-secret police prowl the libraries …

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

Articles

No abstract provided.

Prevalence Of Substantive Consolidation In Large Bankruptcies From 2000 To 2004: Preliminary Results, William H. Widen

Articles

No abstract provided.

Reasoning By Analogy (Reviewing Lloyd L. Weinreb, Legal Reason: The Use Of Analogy In Legal Argument (2005)), Richard A. Posner

Articles

No abstract provided.

Legal Reason: The Use Of Analogy In Legal Argument, Richard A. Posner

Articles

No abstract provided.

In The Trenches Of Law Librarianship - Assessing A Special Collection From Ground Zero, Stacy Etheredge

Articles

No abstract provided.

Michigan's First Woman Lawyer: Sarah Killgore Wertman, Margaret A. Leary

Articles

Sarah Killgore Wertman was the first woman in the country to both graduate from law school and be admitted to the bar. Thus, she was Michigan's first woman lawyer in two senses: She was the first woman to graduate from the University of Michigan Law School, and the first woman admitted to the Michigan bar. Others preceded her in entering law school, graduating from law school, or being admitted to the bar, but she was the first to accomplish all three. Her story illustrates much about the early days of women in legal education and the practice of law, a …

Misfearing: A Reply, Cass R. Sunstein

Articles

No abstract provided.

Life's Golden Tree: Empirical Scholarship And American Law, Carl E. Schneider, Lee E. Teitelbaum

Articles

What follows is a simplified introduction to legal argument. It is concerned with the scheme of argument and with certain primary definitions and assumptions commonly used in legal opinions and analysis. This discussion is not exhaustive of all the forms of legal argument nor of the techniques of argument you will see and use this year. It is merely an attempt to introduce some commonly used tools in legal argument. It starts, as do most of your first-year courses, with the techniques of the common-law method and then proceeds to build statutory, regulatory, and constitutional sources of law into the …

Convergence, Culture And Contract Law In China, John H. Matheson

Articles

At the height of the Industrial Revolution, Britain was called "the Workshop of the World." 1 That title surely belongs to the People's Republic of China (PRC) 2 today. For example, China already is the world's fastest-growing large economy and the second largest holder of foreign-exchange reserves. 3 Furthermore, China is now the world's largest producer of coal, steel, and cement. 4 It is the second largest consumer of energy and the third largest importer of oil. 5 China's exports to the United States have grown by 1600% over the past fifteen years, and U.S. exports to China have grown …

Domestic Violence Matters: The Case For Appointed Counsel In Protective Order Proceedings, Beverly Balos

Articles

A conventional reading of United States Supreme Court rulings on the right to counsel in civil cases would conclude that petitioners in protective order proceedings would have no right to appointed counsel. This article challenges this view and shows how Supreme Court jurisprudence, in fact, supports the conclusion that due process requires victims of domestic violence to have the benefit of appointed counsel.

The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter

Articles

When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private “monopolies,” in contrast to the general antimonopoly thrust of the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners-or excuses otherwise infringing activity on the part of IP defendants-expressly for the purpose of promoting competition. It does so even though antitrust law-if one were to apply it at all under analogous circumstances-would not find anticompetitive harm without conducting a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient examples …

A Cognitive Theory Of Trust, Claire Hill, Erin O'Hara O'Connor

Articles

Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a …

Prospects For Ratification Of The Convention On The Rights Of The Child, David Weissbrodt

Articles

Since early in the development of international human rights law, the particular need to care for children has been acknowledged. Beginning with the Geneva Declaration on the Rights of the Child in 1924 1 and the Declaration of the Rights of the Child, adopted by the U.N. General Assembly in 1959, 2 children's rights have been recognized by human rights organizations and instruments alike. Rights of the child were included in the Universal Declaration of Human Rights; 3 the Geneva Convention for the Protection of Civilian Persons in Time of War; 4 the International Covenant on Economic, Social and Cultural …

The Absolute Prohibition Of Torture And Ill-Treatment, David Weissbrodt

Articles

The President, the Secretary of State, and other U.S. government officials have repeatedly assured the world that the United States does not engage in "torture." Whenever they try to issue such statements, the critical listener must ask such questions as "What do they mean by torture?" Have they so narrowly defined "torture" as to ask the listener to overlook the mounting evidence of extremely brutal treatment which U.S. personnel have perpetrated against detainees in Afghanistan, Guantanamo, Iraq, and other secret detention facilities? Many detainees held by the U.S. have been subjected to illtreatment that would, under international definitions and jurisprudence, …

Robert Alexy, Radbruch's Formula, And The Nature Of Legal Theory, Brian H. Bix

Articles

Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch's formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch's formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy …

Extraordinary Rendition: A Human Rights Analysis, David Weissbrodt, Amy Bergquist

Articles

This article describes extraordinary rendition, the practice of seizing terror suspects and transporting them to third countries for detention and interrogation. The article examines this practice in light of several human rights instruments and demonstrates that extraordinary rendition violates international human rights and humanitarian law. The article is the first in a series of three articles by the co-authors to explore the practice of extraordinary rendition.

Why The Generation-Skipping Transfer Tax Sparked Perpetual Trusts, Mary Louise Fellows

Articles

Max M. Schanzenbach and Robert H. Sitkoff, in the work they presented at this Symposium and in their earlier work, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, provide data to support what practitioners, policymakers, and academics already believe - the generation-skipping transfer (GST) tax exemption encouraged the creation of dynastic trusts and made those states that had no Rule Against Perpetuities (RAP) and no income tax on trusts particularly attractive as sites for settlors to establish their trusts. 1 Their work with the state-level panel data assembled from annual reports to federal banking authorities by …

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander

Articles

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …

Foreclosure Equity Stripping: Legal Theories And Strategies To Attack A Growing Problem, Prentiss Cox

Articles

Foreclosure equity stripping is the classic case of kicking someone who is down. The person perpetrating the equity strip-let's call this person the "acquirer"- targets homeowners who are in foreclosure and have equity remaining in the property. Promising to "save" the home for the desperate homeowner, the acquirer offers refinancing or other assistance to "stop the foreclosure." For too many foreclosed homeowners, these promises end when the acquirer or the acquirer's confederates gain title to the property and take the homeowner's equity.

Goliath Has The Slingshot: Public Benefit And Private Enforcement Of Minnesota Consumer Protection Laws, Prentiss Cox

Articles

The phrase "consumer protection case" may conjure up a used-car buyer trying to get recompense for a vehicle that turned out to be less than promised, or an elderly homeowner victimized by predatory lending tactics trying to maintain possession of her home. In August 2000, the private right of action to enforce Minnesota consumer protection laws was held to be something entirely different. After the Minnesota Supreme Court's decision in Ly v. Nystrom, 1 a business complaining about a competitor's advertising is more likely to have available a private right of action to enforce these laws than either the frustrated …