Law Commons^™

Flattening The World Of Legal Services? The Ethical And Liability Minefields Of Offshoring Legal And Law-Related Services, Carole Silver, Mary C. Daly

Articles by Maurer Faculty

This article examines offshore outsourcing of legal and law-related services as the newest twist in the international market for legal services. We consider the impact of offshore outsourcing on the profession generally and analyze the ethical issues raised by offshore outsourcing, both as it exists today and as the practice may develop in the future. The article begins by situating offshore outsourcing in the framework of relationships created in the context of delivery of legal services. This framework is used, in turn, to construct a structure of analysis for the ethical implications of offshore outsourcing. Lawyers who outsource to offshore …

Not Quite "Them," Not Quite "Us": Why It's Difficult For Former Deans To Go Home Again, Nancy B. Rapoport

Scholarly Works

Here is the final version of the article that discusses the many lessons I learned while serving in the administration of three different law schools. Among other things, the article discusses the problems with shared governance and with linking rights and responsibilities of faculty members. Comments are always welcome

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …

Two Zones Of Prophylaxis: The Scope Of The Fourteenth Amendment Enforcement Power, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Fiction, Form, And Substance In Subchapter K: Taxing Partnership Mergers, Divisions, And Incorporations, Heather M. Field

Faculty Scholarship

No abstract provided.

The Endangered Species Act: Reform Or Refutation?, Brian E. Gray

Faculty Scholarship

No abstract provided.

Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight

Scholarly Articles in Law Reviews & Journals

The United States Court of Appeals for the Federal Circuit delivered only seven precedential trademark opinions in 2006. The Court addressed a range of substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Court decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, the Court sided with the Trademark Trial and Appeal Board and affirmed its decision on the applicability of the res judicata doctrine. In 2006, as in previous years, …

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Market Definition: An Analytical Overview, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This essay surveys important issues in antitrust market definition. It identifies settings in which market definition is useful, and evaluates methods of defining markets. It considers whether markets should be defined with respect to demand substitution only or whether supply substitution also should count. It addresses practical issues in defining markets, including the probative value of various types of evidence, how much buyer substitution is too much, application of the market definition algorithm of the Horizontal Merger Guidelines, the Cellophane fallacy, and the advantages and disadvantages of defining submarkets. It also evaluates several controversial approaches to market definition, including price …

Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

The relationship between competition and innovation is the subject of a familiar controversy in economics, between the Schumpeterian view that monopolies favor innovation and the opposite view, often associated with Kenneth Arrow, that competition favors innovation. Taking their cue from this debate, some commentators reserve judgment as to whether antitrust enforcement is good for innovation. Such misgivings are unnecessary. The modern economic learning about the connection between competition and innovation helps clarify the types of firm conduct and industry settings where antitrust interventions are most likely to foster innovation. Measured against this standard, contemporary competition policy holds up well. Today's …

U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism …

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

Copyright, Fair Use And Motion Pictures, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Within copyright law, the tension between contemporary creators' needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called "fair use" doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.

Humanitarian Intervention: The New Missing Link In The Fight To Prevent Crimes Against Humanity And Genocide, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Foreword: A Symposium Exploring The Modern Legacy Of William Jennings Bryan, Susan Franck

Scholarly Articles in Law Reviews & Journals

William Jennings Bryan, known as "The Great Commoner," is one of the most controversial lawyers to hail from Nebraska.' While he may be best-known as a failed three-time Democratic nominee for U.S. President and the legal defender of creationism at the Scopes Monkey Trial, fundamental aspects of Bryan's life have been overlooked.

In a new biography, A Godly Hero: The Life of William Jennings Bryan, Professor Michael Kazin re-evaluates Bryan's legacy and charges us to consider the profound impact Bryan had upon the political, economic and legal reality of the United States. The book has been the subject of controversy. …

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan Franck

Scholarly Articles in Law Reviews & Journals

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Scholarly Articles in Law Reviews & Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

An Empirical Analysis Of Investment Treaty Awards, Susan Franck

Scholarly Articles in Law Reviews & Journals

I. INTRODUCTION

Earlier speakers offered insights about investment law and its implications for the future of domestic administrative law and international law. To bring us full circle, I will discuss where we are today so that we can consider where we want development law to be tomorrow. In pursuit of that goal, I offer empirical data related to investment treaty arbitration. My goal today is to focus on three claims about investment treaty arbitration and consider the data's potential implications.

Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Catching Up With The Past: Recent Decisions Of The Inter-American Court Of Human Rights Addressing Gross Human Rights Violations Perpetrated During The 1970-1980s, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Lou Henkin, Transitional Justice And The Prevention Of Genocide, Juan Mendez

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: It's an immense honor and a privilege to have been invited to participate in a tribute to Lou Henkin. Even if that were not the occasion, just the honor of sharing a panel with Judge Barkett and with Dean Koh is enough to overwhelm anybody and it does overwhelm me. I hope you will sympathize with me for having to follow them. It is especially overwhelming because as I look around the room, I see so many people who are much more deserving than I am to be here and to be honored in the way you have honored …

Remarks On Intervention, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Racial Fairness In The Criminal Justice System: The Role Of The Prosecutor, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

In this article, Davis analyzes discusses efforts to involve prosecutors in the elimination of racial disparities in the criminal justice system. Part II explains how prosecutors unintentionally contribute to disparities through the arbitrary, unsystematic exercise of discretion. Part III argues that the U.S. Supreme Court has failed to provide an effective legal remedy for victims of race-based selective prosecution. Finally, in Part IV, Davis endorses the use of racial impact studies and task forces and discusses a model reform effort spearheaded by the Vera Institute of Justice.

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …