Law Commons^™

Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus

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When Justice Blackmun wrote Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the assignment was to reconcile the standards governing the admissibility of expert testimony with Federal Rule of Evidence 702. As Justice Blackmun recognized, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had long served as the polestar for determining the admissibility of expert testimony in litigation. Although the test developed by the Frye court was ultimately rejected when the Supreme Court announced new rules regarding the admissibility of expert testimony, the Frye court’s recognition of the purpose behind admitting expert testimony remains instructional: …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

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The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

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Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

The Attorney As Advocate And Witness: Does The Prohibition Of An Attorney Acting As Advocate And Witness At A Judicial Trial Also Apply In Administrative Adjudications, Arnold Rochvarg

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In every state, the professional rules of conduct contain a prohibition on an attorney acting as both an advocate for their client and a witness in the same trial. The "lawyer as witness" rule has, however, been inconsistently applied in administrative adjudications. This article analyzes the split of authority in the use of this rule and proposes a solution as how the issue should be resolved.

Ample support for applying the lawyer as witness rule to administrative adjudications may be found in administrative decisions, judicial opinions and state bar association ethics committee opinions. There is, however, conflicting authority that rejects …

Standards Ownership And Competition Policy, Herbert J. Hovenkamp

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Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.

When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral …

Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen

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This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at …

Prenuptial Agreements: A New Reason To Revive An Old Rule, Jeffrey G. Sherman

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No abstract provided.

Five Views Of The Great Lakes And Why They Might Matter, A. Dan Tarlock

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No abstract provided.

Western Growth And Sustainable Water Use: If There Are No "Natural Limits" Should We Worry About Water Supplies? (With S. Van De Wetering), A. Dan Tarlock

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No abstract provided.

The Return Of Bargain: An Economic Theory Of How Standard Form Contracts Negotiation Between Businesses And Consumers, Jason S. Johnston

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This paper analyzes standard form contracts between firms and individual consumers (and borrowers). It presents a mix of anecdotal and empirical evidence from a large number of industries demonstrating a widespread pattern in which firms refrain from enforcing the typically clear bright line performance obligations that such standard form contracts set out (such as a consumer credit repayment terms, or a retail consumer's right to return goods). Instead, firms routinely give their supervisory employees the discretion to bargain around such terms. Within a simple and informal model, the paper explains such delegated, discretionary renegotiation as a means by which firms …

Recharacterization And The Nonhindrance Of Creditors, David A. Skeel Jr., Georg Krause-Vilmar

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Using a 1977 article by Robert Clark as the starting point, this article attempts to shed new light on the question of whether and when shareholder loans to her company should be either equitably subordinated or, as courts have done in a few recent cases, recharacterized as equity. In its emphasis on the particular issue of shareholder loans, the article has a narrower compass than Clark’s article, which uses a four-part typology to explore the relationship among fraudulent conveyance law, equitable subordination, veil piercing and dividend restrictions. But the article also expands Clark’s analysis in several respects. The most important …

Protecting Children By Preserving Parenthood, Jane C. Murphy

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Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to …

Foster Children Paying For Foster Care, Daniel L. Hatcher

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This Article examines the legality and policy concerns of state foster care agencies using children's Social Security benefits as a state funding stream. The practice requires foster children who are disabled or have deceased or disabled parents to pay for their own care. Often with the assistance of private consultants under contingency fee contracts, agencies look for children who are eligible for Social Security benefits and interject themselves as the children's representative payees. Rather than using the benefits to serve the children's unmet needs, the agencies use their fiduciary power to access the children's benefits and apply the funds to …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

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Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Law And The Fabric Of The Everyday: Settlement Houses, Sociological Jurisprudence, And The Gendering Of Urban Legal Culture, Felice J. Batlan

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No abstract provided.

Compensating Power: An Analysis Of Rents And Rewards In The Mutual Fund Industry, William A. Birdthistle

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The allegations of malfeasance in the investment management industry - market timing, late trading, revenue sharing, and several others - involve a broad range of mutual fund operations. This Article seeks to explain the common source of these irregularities by focusing upon a trait they share: the practice of investment advisers' capitalizing upon their managerial influence to increase assets under management in order to generate greater fees from those assets. This Article extends theories of executive compensation into the context of investment management to understand the extraction of rents by mutual fund advisers. Investment advisers, as collective groups of portfolio …

Defragmenting World Trade, Sungjoon Cho

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This article argues that unchecked multiplication of regional trading blocs seriously fragments world trade, and simultaneously debilitates the multilateral trading system. It endeavors to overcome some of shortcomings of existing literature in this field, such as sector-specific approach and concentration on economic analysis. It attempts to offer holistic, normative diagnosis and prescription anchored by the trade, regulatory, and development objective of the global trading system represented by the WTO. From such a telic standpoint, the article highlights teleological failures caused by regionalist fragmentation and proposes both institutional and judicial means to defragment world trade. The article warns that such regionalist …

Wto’S Identity Crisis (Reviewing Joost Pauwelyn, Conflict Of Norms In Public International Law: How Wto Law Relates To Other Rules Of International Law (2003)), Sungjoon Cho

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Joost Pauwelyn has written an extensive and thought-provoking treatise on the interaction of norms in public international law (PIL), in particular between norms of World Trade Organization (WTO) and non-WTO norms, through a conceptual lens of “conflict.” His main argument is non-WTO norms should be able to “trump” WTO norms under certain circumstances. After framing the concept of norm conflict in PIL (Chapter 1), and defining the nature of WTO law (“reciprocal” obligations) vis-à-vis that of other branches of PIL such as human rights and international environmental law (“integral” obligations) (Chapter 2), the book unfolds its conflict thesis, including hierarchy …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

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No abstract provided.

The Lamentable Notion Of Indefeasible Presidential Powers: A Reply To Professor Prakash, Harold J. Krent

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No abstract provided.

Bringing Jury Instructions Into The Twenty-First Century, Nancy S. Marder

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No abstract provided.

Cyberjuries: A New Role As Online Mock Juries, Nancy S. Marder

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No abstract provided.

Introduction To Secrecy In Litigation (Symposium Editor), Nancy S. Marder

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No abstract provided.

Justice Stevens, The Peremptory Challenge, And The Jury (Symposium), Nancy S. Marder

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No abstract provided.

Constitutional Education For The People Themselves, Sheldon Nahmod

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No abstract provided.

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

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Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent …

The Law Of Exclusionary Pricing, Herbert J. Hovenkamp

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The success of the Areeda-Turner test for predatory pricing and the Supreme Court's adoption of demanding proof requirements in its 1993 Brooke Group decision have made it very difficult for plaintiffs to win conventional predatory pricing claims. While many challenges to exclusionary pricing continue to be made, the legal theory has evolved away from classical predation to a variety of other theories. These include challenges to quantity and market share discounts, single item and package discounts, and various purchasing practices, including slotting fees, overinvestment in fixed cost assets, and overbuying of variable cost inputs. Plaintiffs have enjoyed somewhat greater success …

Should Predatory Pricing Rules Immunize Exclusionary Discounts?, Robert H. Lande

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The purpose of this commentary is to analyze some of the empirical issues that help lay the foundation for the policy conclusions in the excellent and provocative article by Professor Herbert Hovenkamp, Discounts and Exclusion (hereinafter "D&E"). To oversimplify, D&E asserts that discounts usually are procompetitive. It also concedes, but essentially in its footnotes, that discounts can be anticompetitive, but argues that these anticompetitive situations are so rare they should have little impact on public policy. D&E then asserts that efficiencies from discounts are common and significant. It then asserts that the only way to bring clarity, predictability, and an …

When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner

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This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

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The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.