Law Commons^™

Property Rules And Liability Rules, Once Again, Keith N. Hylton

Faculty Scholarship

In recent years, new articles presenting rigorous analyses of bargaining incentives have overturned some of the fundamental claims made by Calabresi and Melamed in their seminal article on property rules and liability rules published in 1972. In particular, the proposition that property rules are socially preferable to liability rules when transaction costs are low appears to be either no longer valid or severely weakened under the new analyses. This paper reexamines the property rule versus liability rule question in light of the contributions of the recent bargaining theory literature. In contrast to this literature, I find that the fundamental propositions …

The Jeffersonian Treaty Clause, Gary S. Lawson, Guy Seidman

Faculty Scholarship

The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. …

An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke

Faculty Scholarship

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …

Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain

Faculty Scholarship

This article looks at a topic that has received little attention in the legal literature: constitution making by families. Of what interest is it to constitutional law and family law, and to those interested in the state of the family, that families undertake to draft - and are urged by assorted experts on the family to draft - family constitutions (by analogy to the U.S. constitution) and family mission statements (by analogy to corporate mission statements)? This article contends that this reported trend is a fruitful topic of inquiry, since it bears on important questions about the dynamics of family …

Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain

Faculty Scholarship

This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …

"God's Created Order", Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …

The Mysterious Ways Of Mutual Funds: Market Timing, Tamar Frankel, Lawrence A. Cunningham

Faculty Scholarship

The term market timing was little known outside the arcane world of mutual funds until state attorneys general from across the country popularized it. The term's innocuous-sounding ring assumed a more pernicious note when the mysterious ways of mutual funds became more transparent. In its pernicious sense, market timing denominates mutual fund insiders using the inscrutable structures of mutual funds to provide benefits selectively to favored participants at the expense of less favored participants.

Mutual fund shares are not like common stocks; investments made using these vehicles are unlike those made through traditional securities markets. While the peculiar features of …

What The Right Of Publicity Can Learn From Trademark Law, Stacey L. Dogan, Mark A. Lemley

Faculty Scholarship

The right of publicity gives people the right to control the use of their name and likeness for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right - what it means to use a name or likeness commercially, and what aspect of a person's likeness are protected against appropriation. In the absence of any clear theoretical foundation for the right of publicity, the meanings of these terms have steadily swelled, to the point at which virtually any use that brings financial benefit to someone by referencing an individual qualifies as a violation of …

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert D. Sloane

Faculty Scholarship

Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part …

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century, Robert D. Sloane

Faculty Scholarship

In State Succession and Commercial Obligations (2006), Tai-Heng Cheng applies the New Haven School methodology to an opaque and unsettled body of international law: that governing the commercial rights and duties of states, creditors, and other participants in the unruly process of state succession. Rather than work within inherited conceptual and doctrinal frameworks, which have seldom proved either helpful or descriptively accurate, Cheng provides a fresh perspective on the issues. He argues that a policy-oriented perspective on state succession ameliorates the "descriptive inaccuracy" and "normative deficit" of inherited theories. Part I of this review considers the former claim; Part II …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Respecting And Protecting The Sacred, Darlene Johnston

All Faculty Publications

In Canada, many citizens are justifiably proud of our country’s commitment to multiculturalism and respect for diversity. Cultural variations in language, art, law, and religion are not only tolerated but also celebrated. There is a growing appreciation that as human beings we share common, fundamental categories of experience, but that those experiences are mediated by and need to be understood in terms of our particular cultural contexts. Just as different cultures have different approaches to land and property, so too do traditions of sacredness vary. But respect for such variations, particularly as between Aboriginal peoples and newcomers to Canada, has …

Corporate Social Accountability Standards In The Global Supply Chain: Resistance, Reconsideration And Resolution In China, Li-Wen Lin

All Faculty Publications

This Article provides a view on corporate social accountability standards from a Chinese perspective, a slightly different angle from that of legal scholars in the United States. The legal literature in the United States typically only focuses on the importance and effectiveness of corporate social accountability standards to regulate the conduct of multinational companies in the era of globalization. However, the views of the outsourced companies in the developing countries on which the multinational companies impose the standards have seldom received attention. This Article tries to fill this void by examining the situation in China. As shown in this Article, …

Educating The Total Jurist?, W. Wesley Pue

All Faculty Publications

This paper discusses a discontinuity between the ways in which legal education has historically sought to reconstruct the soul of lawyers-in-training and the contemporary conceit that legal education can be value-free. It identifies a gap between early 21st century narrowly technocratic approaches to legal professionalism - epitomized by Enron professionalism and earlier conceptions of lawyering. A desire to instill a moral sensibility in apprentice lawyers weighed heavily in an earlier generation's thinking about legal education everywhere in the common law world, giving rise to the programmes, schemes, and imaginings that provided templates for contemporary university legal training. With surprising consistency, …

Super Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Plagiarism In Cyberspace: Learning The Rules Of Recycling Content With A View Towards Nurturing Academic Trust In An Electronic World, Deborah R. Gerhardt

Faculty Publications

No abstract provided.

Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby

Faculty Publications

No abstract provided.

Beyond Hospital Misbehavior: An Alternative Account Of Medical-Related Financial Distress, Melissa B. Jacoby, Elizabeth Warren

Faculty Publications

No abstract provided.

A Patient-Centered Approach To Health Care Fraud Recovery, Joan H. Krause

Faculty Publications

No abstract provided.

Transcending The Individualist Paradigm In Sexual Orientation Antidiscrimination Law, Holning S. Lau

Faculty Publications

No abstract provided.

Assessing The Harms Of Noncompliance With The International Covenant On Civil And Political Right's Protections Of Sexual Minorities, Holning S. Lau, The Williams Institute

Faculty Publications

No abstract provided.

Impact On Washington State's Budget Of Allowing Same-Sex Couples To Marry, M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, Holning S. Lau, The Williams Institute

Faculty Publications

No abstract provided.

Judicial Accountability In A Time Of Legal Realism, William P. Marshall

Faculty Publications

No abstract provided.

Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller

Faculty Publications

No abstract provided.

Coming Out For Kids: Recognizing, Respecting, And Representing Lgbtq Youth, Barbara A. Fedders

Faculty Publications

No abstract provided.

What's Old Is New Again, Symposium: The Role Of Judges In The 21st Century, Michael J. Gerhardt

Faculty Publications

No abstract provided.

‘Blissed Out: Section 15 At Twenty’, Margot Young

All Faculty Publications

This paper was written for the 20th anniversary of the coming into force of section 15(1) of the Canadian Charter of Rights and Freedoms. Unfortunately the same themes that defeated Stella Bliss in 1979, when she launched her Canadian Bill of Rights challenge to the Canadian Unemployment Insurance Act continue. While equality law has moved on from the specific facts of Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183, and from some of the discrete judicial conclusions in that case, it is still true that the series of critical ways of understanding the relationship between equality rights, individuals and …