Law Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

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Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA),the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act and …

The Enduring Ambivalence Of Corporate Law, Christopher M. Bruner

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Prevailing theories of corporate law tend to rely heavily on strong claims regarding the corporate governance primacy and legitimacy of either the board or the shareholders, as the case may be. In this article I challenge the descriptive power of these theories as applied to widely held public corporations and advance an alternative, arguing that corporate law is, and will remain, deeply ambivalent - both doctrinally and morally - with respect to three fundamental and related issues: the locus of ultimate corporate governance authority, the intended beneficiaries of corporate production, and the relationship between corporate law and theachievement of the …

States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner

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This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper.

Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following anexamination of the development of these markets and the global regulatory power exercised by …

The Case Against Tax Incentives For Organ Transfers, Lisa Milot

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Each year some 6,700 Americans die while awaiting an organ transplant. On its face, this fact seems almost inconsequential, representing less than 3% of American deaths annually. However, for the nearly 100,000 patients on the transplant wait list (and their families), nothing could be more consequential. What is more, the demand for transplantable organs is sure to rise as (1) more diseases become subject to prevention or cure, making organ failure the first sign of medical problems; (2) the success rate for transplants increases, leading to wider use; and (3) barriers to inclusion on the wait list are removed.

In …

International Decision: Munaf V. Geren, Harlan G. Cohen

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This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court's decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces "operating subject to an American chain of command, even when those forces are acting as a …

Due Process Rights Before Eu Agencies: The Rights Of Defense, David E. Shipley

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This Article discusses the procedural safeguards that have been recognized in the EU and the parallels between procedural due process in the United States and the rights of defense in the EU. It compares these respective rights and safeguards and explains how U.S. and EU procedures for agency adjudications are converging. Part II sets out the fundamental principles of American due process and EU right to be heard jurisprudence. Part III provides a detailed analysis of the rights of defense in the EU and highlights how this bundle of rights parallels the rights to notice and opportunity to be heard …

Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch

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Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.

Thus, understanding the full picture and texture of securities class actions necessitates …

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

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Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal Khan

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Given the tremendous financial reward that a blockbuster therapy might generate, there are strong incentives to move drug research and development to developing countries, which have minimal ethical guidelines and little transparency. The danger in this race for the prize--or for the bottom--is the exploitation of subaltern populations that have little legal recourse to hold drug companies accountable for the harm that those populations suffer as a result of unethical clinical trials. In other words, the drug industry is acutely aware that there is a minimal threat of costly civil suits and criminal sanctions for their ethical violations in impoverished …

No Civilized System Of Justice, Book Review: The Day Freedom Died: The Colfax Massacre, The Supreme Court, And The Betrayal Of Reconstruction, Sonja R. West

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A book review of The Day Freedom Died: The Colfax Massacre, The Supreme Court, and The Betrayal of Reconstruction by Charles Lane (Henry Holt 2008).

The Course Of True Human Rights Progress Never Did Run Smooth, Diane Marie Amann

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As the United States moves toward the inauguration in January 2009 of a new President, greater attention is paid to what the country might do to restore and reinforce its traditional role as a leader in the promotion of human rights. This essay warns against any assumption that innovation alone will assure greater enforcement of rights; its points of reference are not only the current administration, but also one long past, that of President John F. Kennedy. Rather than jump to embrace new, global concepts like responsibility to protect, therefore, it argues for careful pursuit of local change. It then …

Drawing The Ethical Line: Controversial Cases, Zealous Advocacy, And The Public Good: Foreword, Lonnie T. Brown

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Are lawyers handling controversial matters justified in being myopically fixated upon achieving their client's or the state's objectives, whatever the costs? Or is there a point at which the interests of the system or perhaps even the public must take precedence, requiring that unbridled zeal and loyalty take a backseat? Such fascinating questions were skillfully examined during the 10th Annual Legal Ethics and Professionalism Symposium, "Drawing the Ethical Line: Controversial Cases, Zealous Advocacy, and the Public Good." The published remarks and the articles that follow provide a glimpse into the difficult ethical line-drawing that was engaged in by a distinguished …

Whither Arbitration?, Peter B. Rutledge

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Over the past several decades, scholars and policymakers have debated the future of arbitration in the United States. Those debates have taken on new significance in the present Congress, which is considering a variety of reform proposals. Among the most widely watched are ones that would prohibit the enforcement of predispute arbitration clauses in employment, consumer, and franchise contracts. Reviewing the available empirical literature, the paper explains how many of the assumptions driving the arbitration reform debate are unproven at best and flatly wrong at worst. It then tries to sketch out the economic impact of any move by Congress …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

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Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Arbitration And Article Iii, Peter B. Rutledge

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Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …

Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West

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The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after …

Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller

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The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, is also a person of ordinary creativity, not an automaton. This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, …

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

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In this brief essay, I hope to lay out the case against the Arbitration Fairness Act.3 Part I of this Article addresses the “findings” on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the “findings” at best are better described as “untested hypotheses” or “assumptions”). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

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Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. New governance scholars have both described and laid the theoretical foundation for what they see as promising and innovative efforts to address public problems. These efforts attempt to be less hierarchical, more transparent, and more democratic than traditional top-down forms of …

Discovery, Judicial Assistance And Arbitration: A New Tool For Cases Involving U.S. Entities?, Peter B. Rutledge

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Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does …

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

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On October 20, 2005, the General Conference of the United Nations Educational, Scientific and CulturalOrganization (UNESCO) adopted a treaty - by a vote of 148-2, with 4 abstentions - that legitimates domestic legal measures aimed at the protection of local producers of cultural activities, goods and services. Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France - its principal proponents - and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have long …

Public Health Law For A Brave New World; Book Review: Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, Elizabeth Weeks Leonard

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This is book review of Lawrence O. Gostin's new edition of Public Health Law: Power, Duty, Restraint (University of California Press, Berkeley, California, 2d ed., 2008). A review of a second edition of a book may be somewhat unusual as subsequent editions of already published works typically do not break new ground. But this book is different. Gostin's first edition, published in 2000, established and defined the modern field of public health law. The revised and expanded second edition emerges in the post-9/11, post-Katrina, post-Bush world. Gostin now seeks to apply public health paradigms to social problems beyond the field's …

Race-Conscious Student Assignment Plans After Parents Involved: Bringing State Action Principles To Bear On The De Jure/De Facto Distinction, Michael Wells

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In Parents Involved in Community Schools v. Seattle School District No. 1, a sharply divided Supreme Court struck down two race-conscious school assignment plans aimed at achieving greater racial integration of the public schools. Taking Parents Involved as a starting point, this Article looks ahead to the future of litigation over student assignment plans. By striking down the Seattle and Louisville plans, the decision may "require hundreds of school districts to rethink race-based policies that they use voluntarily to desegregate schools." At the very least, the 5-4 ruling almost certainly did not put an end to race-conscious integration plans or …

Remixing Obviousness, Joseph S. Miller

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In April 2007, the Supreme Court, for the first time in 41 years, decided a case about the basic contours of patent law's nonobviousness standard. The case, KSR, upends 25 years of Federal Circuit jurisprudence, and on a legal requirement that every patent must satisfy. In this essay, I show how KSR dismantles two predicates that have long shaped Federal Circuit nonobviousness cases - namely, the intertwined premises that hindsight-driven distortion is the gravest risk to an accurate nonobviousness requirement, and that the person of ordinary skill in the art (from whose perspective nonobviousness is judge) is singularly uncreative. In …

"I'M Sorry, I Can't Answer That": Supreme Court Confirmations, Judicial Independence, And Positive Legal Scholarship, Lori A. Ringhand

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The United States Constitution grants to the Senate the duty to provide its “advice and consent” to the appointment of Supreme Court Justices. Just how senators should exercise that duty, however, is deeply contested. Much of the dispute about the Senate's role involves the appropriate scope of questions the senators should ask, and what nominees should be expected to answer, at the confirmation hearing held by the Senate Judiciary Committee. Opponents of vigorous senatorial questioning argue that such questioning infringes on the independence of the judiciary; proponents argue that the nominees' failure to answer probing questions hinders the Senate's constitutional …

The Fetishization Of Independence, Usha Rodrigues

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According to conventional wisdom, a supermajority independent board of directors is the ideal corporate governance structure. Debate nevertheless continues: empirical evidence suggests that independent boards do not improve firm performance. Independence proponents respond that past studies reflect a flawed definition of independence.

Remarkably, neither side in the independence debate has looked to Delaware, the preeminent state source for corporate law. Comparing Delaware's notions of independence with those of Sarbanes-Oxley and its attendant reforms reveals two fundamentally different conceptions of independence. Sarbanes-Oxley equates independence with outsider status. An independent director is one who lacks financial ties to the corporation and is …

Making The Law: Unpublication In The District Courts, Hillel Y. Levin

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In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2007 the Eleventh Circuit interpreted the United States Supreme Court’s decision in Rapanos v. United States, regarding the federal government’s jurisdiction over waters under the Clean Water Act (“CWA”), and held that in order for federal jurisdiction to exist over a water that is not navigable in fact, the water must have a “significant nexus” with a water that is navigable in fact. Also under the CWA, the court partially reversed a granting of summary judgment to the Florida Department of Environmental Protection, holding that the department had improperly excluded some types of evidence in approving Florida’s 2002 …

Kyoto Comes To Georgia: How International Environmental Initiatives Foster Sustainable Commerce In Small Town America, Peter A. Appel, T. Rick Irvin, Julie M. Mcentire, J. Chris Rabon

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This Article posits that in response to adoption of Kyoto Protocol targets by governments and multi-national corporations overseas that comprise significant portions of the global economy as well as global financial markets, businesses and state and local governments in the U.S. are also being driven by necessity to undertake sustainable commerce initiatives. Businesses in the EU and other Kyoto-compliant regions that have implemented sustainable commerce programs now require overseas vendors and suppliers-including those in the U.S.-to implement their own sustainable commerce initiatives as a condition of approved supplier status. New EU environmental regulations developed in part to meet Kyoto-specified emissions …