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2008

Faculty Scholarship

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Institution
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Articles 1 - 30 of 673

Full-Text Articles in Law

Exercising Passive Personality Jurisdiction Over Combatants: A Theory In Need Of A Political Solution, Eric Talbot Jensen Dec 2008

Exercising Passive Personality Jurisdiction Over Combatants: A Theory In Need Of A Political Solution, Eric Talbot Jensen

Faculty Scholarship

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States ...


The Dystopian Potential Of Corporate Law, D. Gordon Smith Dec 2008

The Dystopian Potential Of Corporate Law, D. Gordon Smith

Faculty Scholarship

The community of corporate law scholars in the United States is fragmented. One group, heavily influenced by economic analysis of corporations, is exploring the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for social justice, is challenging the traditional, shareholder-centric view of corporate law, arguing instead for a model of stakeholder governance. The current disagreement within corporate law is as fundamental as in any area of law, and the debate is more heated than at any time since the New Deal. This paper is part of a debate on the audacious question, Can Corporate Law Save ...


Initial Public Offerings And The Failed Promise Of Disintermediation, A. Christine Hurt Dec 2008

Initial Public Offerings And The Failed Promise Of Disintermediation, A. Christine Hurt

Faculty Scholarship

No abstract provided.


The Undercivilization Of Corporate Law, A. Christine Hurt Dec 2008

The Undercivilization Of Corporate Law, A. Christine Hurt

Faculty Scholarship

No abstract provided.


Reinvigorating Tax Expenditure Analysis And Its International Dimension, J. Clifton Fleming Jr., Robert J. Peroni Dec 2008

Reinvigorating Tax Expenditure Analysis And Its International Dimension, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Tax expenditure analysis (TEA) was rigorously criticized from its inception and continues to draw negative reviews. Notwithstanding this criticism, the Congressional Budget and Impoundment Control Act of 1974 requires the President's annual budget submission to contain a list of tax expenditures, and Congress's Joint Committee on Taxation has produced its own tax expenditure list each year since 1972. Although TEA has not restrained or reversed the growth of tax expenditures, TEA continues to play a major role in tax policy debates to the chagrin of its detractors. The persistence of TEA in a hostile environment suggests that it ...


Untying The Gordian Knot: A Proposal For Determining Applicability Of The Laws Of War To The War On Terror, Geoffery S. Corn, Eric Talbot Jensen Dec 2008

Untying The Gordian Knot: A Proposal For Determining Applicability Of The Laws Of War To The War On Terror, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

No abstract provided.


Cyber Civil Rights, Danielle Keats Citron Dec 2008

Cyber Civil Rights, Danielle Keats Citron

Faculty Scholarship

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations. Today ...


The New European Choice-Of-Law Revolution, Ralf Michaels Dec 2008

The New European Choice-Of-Law Revolution, Ralf Michaels

Faculty Scholarship

Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along ...


Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen Dec 2008

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen

Faculty Scholarship

Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.


The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes Dec 2008

The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes

Faculty Scholarship

Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains ...


The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein Dec 2008

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Faculty Scholarship

No abstract provided.


Cyber Civil Rights (November 2008; Mp3), Danielle Keats Citron Nov 2008

Cyber Civil Rights (November 2008; Mp3), Danielle Keats Citron

Faculty Scholarship

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital "scarlet letters" that ruin reputations. Today ...


Torts And Innovation, Alex Stein, Gideon Parchomovsky Nov 2008

Torts And Innovation, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.


Punitive Damages, Criminal Punishment, And Proportionality: The Importance Of Legislative Limits, Leo M. Romero Nov 2008

Punitive Damages, Criminal Punishment, And Proportionality: The Importance Of Legislative Limits, Leo M. Romero

Faculty Scholarship

This Article addresses the timely and controversial topic of constitutional limits on punitive damages and brings a criminal punishment theory perspective to the analysis of this issue. The question of how to determine when punishment is unconstitutionally excessive has been and continues to be a subject of intense debate in the courts and scholarly circles. The United States Supreme Court has subjected criminal sanctions, criminal forfeitures, and punitive damages to a proportionality requirement, but the Court uses different approaches to the proportionality analysis depending on the type of punishment. In the criminal context, the Court has retreated in large part ...


Electronic Tax Fraud - Are There 'Sales Zappers' In Japan?, Richard Thompson Ainsworth Oct 2008

Electronic Tax Fraud - Are There 'Sales Zappers' In Japan?, Richard Thompson Ainsworth

Faculty Scholarship

Although there is no public acknowledgement - in the press, in a court case, though any announcement by the Japanese National Tax Administration, or in any academic studies or papers - that Zappers and Phantom-ware are a fraud problem in Japan, a number of factors suggest that Japan may be very fertile ground for technology-assisted cash skimming fraud. Those factors include: (1) a high concentration of small to medium sized businesses; (2) the fact that the retail economy is highly cash-based; and (3) the high level of technology acceptance in the Japanese retail sector - electronic cash registers (ECRs) and point of sale ...


Systemic Risk, Steven L. Schwarcz Oct 2008

Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can ...


Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner Oct 2008

Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner

Faculty Scholarship

James M. Donovan’s article: Skating on Thin Intermediation: Can Libraries Survive?, 27 Legal Reference Services Q. 95 (no. 2-3, 2008) argues that librarians place more emphasis than they might on providing service to library users at a time when information seekers are relying less on intermediaries, and that over-emphasizing service to the detriment of other values diminishes the status of librarianship as a profession. The article presents two contrasting models of librarianship. This article discusses Donovan’s models and comments on the continuing importance of the service model to librarianship.


Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly Oct 2008

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else ...


Danforth, Retroactivity, And Federalism, J. Thomas Sullivan Oct 2008

Danforth, Retroactivity, And Federalism, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak Oct 2008

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is ...


Linkage And The Deterrence Of Corporate Fraud, Miriam Baer Oct 2008

Linkage And The Deterrence Of Corporate Fraud, Miriam Baer

Faculty Scholarship

No abstract provided.


Domestic Violence Law Reform In The Twenty-First Century: Looking Back An Looking Forward, Elizabeth M. Schneider Oct 2008

Domestic Violence Law Reform In The Twenty-First Century: Looking Back An Looking Forward, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.


Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel Oct 2008

Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.


Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel Oct 2008

Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.


America's Unknown Constitutional World, Christian G. Fritz Oct 2008

America's Unknown Constitutional World, Christian G. Fritz

Faculty Scholarship

Historical and popular understandings of the American constitutional tradition have adopted the contentions of only one side of this debate and its role in bringing about the 1787 constitution. In doing so, these accounts miss much of that tradition’s actual history.


The Emerging Importance Of "Social Visibility" In Defining A "Particular Social Group" And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf Oct 2008

The Emerging Importance Of "Social Visibility" In Defining A "Particular Social Group" And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

Faculty Scholarship

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immutable" characteristic ...


Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh Oct 2008

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for a symposium ...


International And Comparative Aspects Of Trademark Dilution, Mark D. Janis, Peter K. Yu Oct 2008

International And Comparative Aspects Of Trademark Dilution, Mark D. Janis, Peter K. Yu

Faculty Scholarship

Extract:

In the United States, trademark antidilution protection is back—maybe. Proposed by Frank Schechter in the 1920s, adopted in various incarnations in some states over the next few decades, and ultimately introduced in a slightly different form in federal trademark law in 1995, the dilution provisions drew a cool reception in the courts. By the late 1990s, an increasingly restive judiciary was constraining the federal dilution provisions in various ways, most notably by requiring mark owners to prove actual dilution in order to establish liability, a requirement endorsed by the United States Supreme Court in Moseley v. V Secret ...


Congress Should Engage In Sentencing Review: Some Ideas For The 111th Congress, Lisa A. Rich Oct 2008

Congress Should Engage In Sentencing Review: Some Ideas For The 111th Congress, Lisa A. Rich

Faculty Scholarship

Since the Booker decision, Congress has demonstrated, for the most part, remarkable restraint against "tinkering" with the system, a fact owed in large measure to the efforts of the United States Sentencing Commission to keep Congress informed about federal sentencing trends. The Commission has done an admirable job in turning around its data collection, analysis, and reporting functions to provide Congress, and the entire criminal justice system, with useful statistics and information that suggest the system is not falling apart. For example, the Commission's efforts demonstrate, as Frank Bowman noted, that the average sentence in federal cases did rise ...


On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr Oct 2008

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr

Faculty Scholarship

In their book, Patent Failure: How Judges, Bureaucrats, and Lauyers Put Innovators at Risk, James Bessen and Michael Meurer present an empirical assessment of the costs and benefits of patent protection. Their conclusion is startling. For most industries, the availability of patents discourages innovation.

According to Bessen and Meurer, patents benefit innovators by providing exclusivity and thereby enabling an innovator to capture more rents or profits from their innovation than they could with lead-time or other market mechanisms alone. While innovators can obtain rents from their own Patents, they also face the threat of infringement litigation from Patents held by ...