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2008

Faculty Publications

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Articles 1 - 30 of 258

Full-Text Articles in Law

It's A Blessing, Douglas E. Abrams Dec 2008

It's A Blessing, Douglas E. Abrams

Faculty Publications

No abstract provided.


Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin Dec 2008

Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework …


Dispelling Grammar Myths: 'To Split' Or 'Not To Split' The Infinitive, Rebecca K. Blemberg Dec 2008

Dispelling Grammar Myths: 'To Split' Or 'Not To Split' The Infinitive, Rebecca K. Blemberg

Faculty Publications

No abstract provided.


Chevron's Consensus, Evan J. Criddle Dec 2008

Chevron's Consensus, Evan J. Criddle

Faculty Publications

No abstract provided.


Professional Development: Your Key To Success And Satisfaction, Sandee Magliozzi, Susan P. Beneville Nov 2008

Professional Development: Your Key To Success And Satisfaction, Sandee Magliozzi, Susan P. Beneville

Faculty Publications

No abstract provided.


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Nov 2008

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …


Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong Oct 2008

Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong

Faculty Publications

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention …


Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz Oct 2008

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …


Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz Oct 2008

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …


Neighborhoods Healed Through Restorative Justice, Janine P. Geske, India Mccanse Oct 2008

Neighborhoods Healed Through Restorative Justice, Janine P. Geske, India Mccanse

Faculty Publications

No abstract provided.


Mandatory Rules, Scott Dodson Oct 2008

Mandatory Rules, Scott Dodson

Faculty Publications

Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …


Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen Chien Oct 2008

Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen Chien

Faculty Publications

The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law.

Based on an …


Judicial Foreign Policy: Lessons From The 1790s, David Sloss Oct 2008

Judicial Foreign Policy: Lessons From The 1790s, David Sloss

Faculty Publications

This Article demonstrates that the exclusive political control thesis is incompatible with the original understanding of the Founders. The Article does not defend originalism as a method of constitutional interpretation; it merely shows that the exclusive political control thesis is inconsistent with an originalist approach.

The Article examines the implementation of U.S. neutrality policy in the period from 1793 to 1797. Other scholars have analyzed the initial formulation of U.S. neutrality policy in 1793. Scholars who focus narrowly on the year 1793, when the United States first articulated its neutrality policy, have concluded that "the federal courts played a relatively …


Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer Oct 2008

Pleading Civil Rights Claims In The Post-Conley Era, A. Benjamin Spencer

Faculty Publications

Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term. Specifically, what will be the fallout from the Court's decision in Bell Atlantic Corp. v. Twombly, a case that abrogated Conley v. Gibson's famous "no set of facts" formulation and supplanted it with a new plausibility pleading standard? This Article attempts to examine and distill the impact of Twombly on the pleading standards that lower federal courts are applying when scrutinizing civil rights claims. Two main approaches emerge: that of courts choosing to continue to apply a …


Diversifying America's Energy Future: The Future Of Renewable Wind Power, Ronald H. Rosenberg Oct 2008

Diversifying America's Energy Future: The Future Of Renewable Wind Power, Ronald H. Rosenberg

Faculty Publications

No abstract provided.


The Content Of Consumer Law Classes, Jeff Sovern Oct 2008

The Content Of Consumer Law Classes, Jeff Sovern

Faculty Publications

Attendees at the University of Houston Law Center Conference titled Teaching Consumer Law: The Who, What, Where, Why, When and How were surveyed to determine what topics they covered in consumer law classes. Twenty-five responses were received, representing fourteen survey classes, five clinics, and six miscellaneous responses. The responses indicated considerable diversity in the topics covered. No topic was covered by more than 21 professors and each of the 32 topics listed on the survey instrument was discussed by at least four professors. Under the circumstances, it seems difficult to claim that consumer protection classes have a canon agreed upon …


A Darwinist View Of The Living Constitution, Scott Dodson Oct 2008

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …


What Is Urban Health Policy And What's Law Got To Do With It?, Larry I. Palmer Oct 2008

What Is Urban Health Policy And What's Law Got To Do With It?, Larry I. Palmer

Faculty Publications

No abstract provided.


Choice Of Law, The Constitution And Lochner, James Y. Stern Oct 2008

Choice Of Law, The Constitution And Lochner, James Y. Stern

Faculty Publications

No abstract provided.


The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim Oct 2008

The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim

Faculty Publications

No abstract provided.


The Iphone Meets The Fourth Amendment, Adam M. Gershowitz Oct 2008

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …


What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck Oct 2008

What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck

Faculty Publications

This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach …


The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch Oct 2008

The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch

Faculty Publications

Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting …


Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz Oct 2008

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …


Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams Oct 2008

Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.


Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz Sep 2008

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Faculty Publications

No abstract provided.


The Crimes Of Terrorism, Beth Van Schaack, Ron Slye Sep 2008

The Crimes Of Terrorism, Beth Van Schaack, Ron Slye

Faculty Publications

This work is a chapter for a forthcoming book on The Essentials of International Criminal Law to be published by Aspen Publishers as part of its Essentials series. This chapter discusses the contested concept of terrorism under international law, with a focus on efforts to criminalize the phenomenon. In particular, it discusses the major obstacles to achieving an omnibus definition of the crime with a particular emphasis on the intersection of the prohibitions against terrorism and international humanitarian law. Additional chapters in the text address the history of ICL, the sources of ICL, the major international crimes and defenses, and …


The Internationalization Of Crimes, Beth Van Schaack Sep 2008

The Internationalization Of Crimes, Beth Van Schaack

Faculty Publications

This work is a chapter for a forthcoming book on The Essentials of International Criminal Law to be published by Aspen Publishers as part of its Essentials series. This chapter discusses one of the major conundrums of international criminal law (ICL): how to distinguish international crimes (war crimes, crimes against humanity, terrorism, and genocide) from their domestic analogs (murder, assault, and mayhem). The chapter discusses the various approaches to "internationalization" (focusing on issues of identity, transnationalism, human dignity, global stability, etc.) and concludes that international crimes lack a coherent unifying justification. Additional chapters in the text address the history of …


Book Review - Climate Change: A Guide To Carbon Law And Practice, Rebekah K. Maxwell Sep 2008

Book Review - Climate Change: A Guide To Carbon Law And Practice, Rebekah K. Maxwell

Faculty Publications

No abstract provided.


The Legal Regulation Of War, Beth Van Schaack, Ron Slye Sep 2008

The Legal Regulation Of War, Beth Van Schaack, Ron Slye

Faculty Publications

This work is a chapter for a forthcoming book on The Essentials of International Criminal Law to be published by Aspen Publishers as part of its Essentials series. This chapter weaves together the history and contemporary doctrines governing the jus ad bellum (addressing the legality of going to war) with the jus in bello (addressing the rules governing the means, methods, and tactics of warfare once a state of war exists). It then focuses on the penal implications of breaches of these two bodies of war SHOULD BE LAW NOT WAR with respect to the evolving definitions of war crimes …