Law Commons^™

Governance Of The Workplace: The Contemporary Regime Of Individual Contract, Kenneth G. Dau-Schmidt, Timothy A. Haley

Articles by Maurer Faculty

No abstract provided.

Special Issues Raised By Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA …

Advocating For The Employment Rights Of Victims Of Domestic Violence And Sexual Assault, Deborah A. Widiss, Robin R. Runge

Articles by Maurer Faculty

No abstract provided.

Using Federal And State Laws To Promote Secure Housing For Survivors Of Domestic Violence, Deborah A. Widiss, Emily J. Martin

Articles by Maurer Faculty

No abstract provided.

What Is Natural Resources Law?, Robert L. Fischman

Articles by Maurer Faculty

A recent flurry of new natural resources law casebooks, coming a quarter-century since the publication of the last significant new teaching materials, is an occasion to revisit the boundaries that define the field. The similarities among the casebooks are stronger than their differences, and represent a consensus about what composes natural resources law. The published teaching materials as well as an informal poll of natural resources law professors show a substantial overlap between natural resources and environmental law course coverage. Administrative implementation of statutes dominates both subjects. Both courses typically cover environmental impact analysis and endangered species protection. The new …

Savings Clauses And Trends In Natural Resources Federalism, Robert L. Fischman, Angela King

Articles by Maurer Faculty

This article considers recent trends in federalism, with particular attention to natural resource law's statutory savings clauses. It begins with a case study of elk management in Jackson Hole, Wyoming. The elk controversy shows how a statutory savings clause can provide a state with traction to advance its interests, and demonstrates how the political winds of change can shift the balance of state-federal relations. The article then focuses on the common statutory savings clauses and their roles in circumscribing federal agency authority and establishing a basis for cooperation between federal and state governments. We analyze the interpretive approaches the judiciary …

Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, Hannah Buxbaum

Articles by Maurer Faculty

This article examines a form of securities class action that is growing increasingly popular in U.S. courts: the foreign cubed action, brought against a foreign issuer on behalf of a class that includes foreign investors who purchased securities on a foreign exchange. These cases are becoming an important part of the regulatory landscape (as evidenced by recent high-profile lawsuits involving issuers such as Vivendi, Bayer and Royal Ahold), and they create the potential for particularly severe conflict with other countries on the question of how best to regulate global economic activity. Yet they point out quite clearly that the traditional …

Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Outsourcing And The Globalizing Legal Profession, Jayanth K. Krishnan

Articles by Maurer Faculty

The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which …

Scholarly Discourse, Public Perceptions, And The Cementing Of Norms: The Case Of The Indian Supreme Court And A Plea For Research, Jayanth K. Krishnan

Articles by Maurer Faculty

For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard - the Indian Supreme Court.

In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed …

The Individual And Customary International Law Formation, Christiana Ochoa

Articles by Maurer Faculty

A state monopoly on customary international law formation was once required and acceptable, given the status states enjoyed as the sole subjects of international law. Since the drafting of the most commonly cited doctrinal sources of customary international law, legal personhood has been extended to individuals. During this same time period, individuals have come to participate in treaty-making in some key areas of international law, including human rights. The customary international law of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects protected by those provisions that have attained the status …

Book Review. All Politics Is Global: Explaining International Regulatory Regimes By Daniel W. Drezner, David Fidler

Articles by Maurer Faculty

No abstract provided.

Architecture Amidst Anarchy: Global Health's Quest For Governance, David Fidler

Articles by Maurer Faculty

Increased concern about global health has focused attention on governance questions, and calls for new governance architecture for global health have appeared. This article examines the growing demand for such architecture and argues that the architecture metaphor is inapt for understanding the challenges global health faces. In addition to traditional problems experienced in coordinating State behavior, global health governance faces a new problem, what I call “open-source anarchy.” The dynamics of open-source anarchy are such that States and non-State actors resist governance reforms that would restrict their freedom of action. In this context, what is emerging is not governance architecture …

Hate Thy Neighbor, Jeannine Bell

Articles by Maurer Faculty

This Article addresses one of the consequences of racial segregation in housing - violence and intimidation directed at minorities who are integrating white neighborhoods. In describing the history and dynamics of this type of anti-integrationist crime, the Article seeks to offer an introduction to the setting of hate crimes in a neighborhood context. The Article provides a critical bridge between hate crime law and housing law, exploring the substantial difficulties when each of these legal remedies is used to combat this type of violence. The Article concludes by offering a series of solutions uniquely crafted to combat the problem of …

An Empirical Analysis Of Life Tenure: A Response To Professors Calabresi And Lindgren, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

Opposition to life tenure has been steadily mounting in the legal academy and Professors Steve Calabresi and Jim Lindgren are among those leading the charge. Crucial to their argument that life tenure is fundamentally flawed is an empirical claim that the increases in average tenure among Supreme Court Justices are both dramatic and unprecedented.

In this article, the authors respond to Calabresi and Lindgren by showing that their hypothesis of dramatic and unprecedented growth in average tenure has two fundamental flaws. First, it suffers from a period-selection problem. Rendering the data using longer or shorter periods blunts or eliminates the …

Confusion Over Use: Contextualism In Trademark Law, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism …

Are Senior Judges Unconstitutional?, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems …

Through The Quarantine Looking Glass: Drug-Resistant Tuberculosis And Public Health Governance, Law, And Ethics, David P. Fidler, Lawrence O. Gostin, Howard Markel

Articles by Maurer Faculty

No abstract provided.

Technological Change And The Design Of Plant Variety Protection Regimes, Mark D. Janis, Stephen Smith

Articles by Maurer Faculty

No abstract provided.

Income And Career Satisfaction In The Legal Profession: Survey Data From Indiana Law School Graduates, Jeffrey E. Stake, Kenneth G. Dau-Schmidt, Kaushik Mukhopadhaya

Articles by Maurer Faculty

This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government …

Extensively Drug-Resistant Tuberculosis: An Isolation Order, Public Health Powers, And A Global Crisis, David P. Fidler, Howard Markel, Lawrence O. Gostin

Articles by Maurer Faculty

No abstract provided.

Governing Catastrophes: Security, Health And Humanitarian Assistance, David P. Fidler

Articles by Maurer Faculty

Recent catastrophes, and predictions of an increasing potential for more, have stimulated thinking about the best policy responses to these threats. This article explores how security concepts influence catastrophe governance. The article considers how globalization affects thinking about catastrophes and describes ways in which catastrophes have been conceptualized as governance challenges, such as the human rights approach to the provision of health and humanitarian assistance. The article explains how health and humanitarian assistance experienced ‘‘securitization’’ in the post-cold war period, a development that challenges rights-based strategies and creates complex and controversial implications for the prevention, protection and response functions of …

Reflections On The Revolution In Health And Foreign Policy, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Reflections On The Tenth Anniversary Of The Refuge Improvement Act, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.

Incentive And Expectation In Copyright, Sara K. Stadler

UC Law Journal

In this Article, the author reveals a fundamental flaw in how courts and scholars have come to reason about copyright law. Creators expect to be rewarded for engaging in the labor of creation, and one of those rewards is the bundle of exclusive rights known as "copyright." Congress uses copyright law to give creators the rewards they expect, so as to safeguard their incentives to create. But what if creators expect too much? Must Congress use copyright law to satisfy those expectations, thus preserving what creators claim to require as "incentive?" To date, everyone has assumed that the answer is …

Lawful Peacekeeping: Applicability Of International Humanitarian Law To United Nations Peacekeeping Operations, Jaume Saura

UC Law Journal

The deployment and operation of United Nations peacekeeping missions has been rightly considered one of the most successful initiatives in the history of the organization. In 1988, UN peacekeeping forces were awarded the Nobel Peace Prize for their contribution to reducing tensions and ending hostilities.

Although the "blue helmets" were not originally envisaged in the Charter of the United Nations, they have brought peace and stability to numerous cases of domestic and international armed conflict.

Notwithstanding the overall success of peacekeeping operations, recent violations of the laws of war by UN peacekeeping forces raise the question of the duty of …

Blakely's Silver Lining; Sentencing Guidelines, Judicial Discretion, And Crime, Joanna Shepherd

UC Law Journal

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines.

After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set. The analysis shows that guidelines …

Family Conflicts: The Role Of Religion In Refusing Medical Treatment For Minors, Jennifer E. Chen

UC Law Journal

Traditionally, minors are subject to their parents' will when it comes to their own healthcare treatment. While most parents make decisions consistent with societal values that they should obtain the best medical treatment available when their child is critically ill, cases exist where parents have refused medical treatment for their child because of their religious beliefs. Based on constitutional rights, parents have some leeway to make these treatment refusal decisions, and in no published case to date has a child asserted a treatment preference contrary to that of his or parents refusing treatment on religious grounds. Thus, courts have yet …

Principles For Resolving Conflicts Between Trade Secrets And The First Amendment, Pamela Samuelson

UC Law Journal

Trade secret defendants sometimes raise First Amendment defenses to trade secret misappropriation claims. Some commentators believe that the First Amendment defenses should never be given credence in trade secret cases because trade secrets are property rights and there is no First Amendment right to violate property rights, a theory which the California Supreme Court arguably adopted in DVD Copy Control Association v. Bunner. Other commentators assert that preliminary injunctions in informational trade secret cases should be considered prior restraints on speech, which bear a heavy presumption of unconstitutionality.

This Article asserts that preliminary injunctions in ordinary trade secret cases generally …

The Consumer Class Action Bill Of Rights: A Policy And Political Mistake, Laurens Walker

UC Law Journal

This Article discusses the significance of the Consumer Class Action Bill of Rights, found in section 3 of the 2005 Class Action Fairness Act. The author argues that this section is the most significant provision of the law. In addition to expounding upon the notice provision of the Bill of Rights Section, the Article explores the possible responses that public officials could make. Additionally, the author predicts a strong degree of public participation in class action settlements, especially by the Attorneys General of the states. The Article also considers the Act's substantive regulation of settlement terms, including ''coupon settlements," as …