Law Commons^™

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

Duke Law Journal

Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select …

Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Duke Law Journal

It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.(1)

Journal Staff

Duke Law Journal

No abstract provided.

Narrowing The Bankruptcy Safe Harbor For Derivatives To Combat Systemic Risk, Bryan G. Faubus

Duke Law Journal

Bankruptcy law establishes proceedings designed to rehabilitate debtors while protecting creditors, but a series of safe harbors effectively exempts from bankruptcy proceedings certain financial contracts known as derivatives. Accordingly, when a party to a derivative contract goes bankrupt, the counterparty may terminate the contract and seize what it is owed from the debtor's assets. Congress enacted these safe harbors to combat the risk of systemic failure by maintaining liquidity in troubled markets; in doing so, however, they allowed counterparties to engage in opportunistic behavior and inefficiently consume a debtor's limited assets. Because these two consequences may harm the debtor and …

"Per Se Illegality For Reverse Payment Settlements?" Review Of "Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Daniel A. Crane

Reviews

Congratulations to Mike on a very fine book. I will confine my comments to Mike's chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review. Patent settlements involving "reverse payments" are a huge topic on which I and many others have spilled much ink already. Representative Bobby Rush (President Obama's erstwhile nemesis from Chicago's South Side) has just introduced legislation that would ban reverse payments.' I will not regurgitate my entire spiel on patent settlements here, but instead just try to highlight my essential disagreement with Mike …

Licensing And Patent Protection, Arijit Mukherjee, Aniruddha Bagchi

Faculty Articles

We show the impact of technology licensing on optimal patent policy. Strong patent protection that eliminates imitation may not be the equilibrium outcome in the presence of licensing. Depending on the cost of innovation, licensing may either increase or reduce the strength of the patent protection.

Paying Women For Their Eggs For Use In Stem Cell Research, Pamela Foohey

Scholarly Works

On June 11, 2009, the Empire State Stem Cell Board (“Board”), which administers the $600 million in New York State funds allotted to stem cell research, voted to allocate a portion of those funds to compensate women up to $10,000 for “donating” their eggs for use in stem cell research. The Board's decision makes New York the first state to affirmatively allow state funds to be used to compensate women for providing their eggs for use in stem cell research beyond mere reimbursement of associated medical and other expenses, and, similarly, distinguishes it from most international countries, which either prohibit …

Front Matter

Intercultural Human Rights Law Review

Front Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 5 (2010).

Anatomy Of A Sex Trafficking Case, Terry Coonan

Intercultural Human Rights Law Review

This article contends that a different conceptual model is needed to describe and analyze contemporary U.S. sex trafficking. The experience of the North Florida sex trafficking victims makes clear that neither the semantics nor the underlying ideologies that have dominated the current debate - especially as regards the role of consent in prostitution - are particularly helpful or illuminating. This article proposes a third model entitled "Commercial Sex as a Compromised Choice" that seeks to more accurately delineate the role of consent in prostitution and sex trafficking cases. It also proposes that U.S. law incorporate the provision of the UN …

The Significance Of Conscience, Kent Greenawalt

Faculty Scholarship

Conscience, like most words that describe human experience and recommend human action, has changed its meanings over time and takes on subtly different meanings in different contexts. Since the time of Thomas Aquinas, when conscience referred to moral judgments about action, and our founding era, when “freedom of conscience” dominantly referred to individual religious liberty, our understanding has evolved. In this paper, I concentrate on present usage. My aims are partially descriptive and mainly normative. My hope is that by clarifying various ways the notion of conscience is conceived, I can contribute to a thoughtful elaboration of normative issues …

Countermeasure Mechanisms In A P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

Scholarly Works

The detection of deception has been the focus of much research in the past 20 years. Though much controversy has surrounded one deception detection protocol, the “Control Question Test” (NRC 2003, Ben-Shakhar 2002), an alternative test, the Guilty Knowledge Test (GKT), developed by Lykken (1959, 1960), is based on scientific principles and has been well-received in the scientific community. The GKT presents subjects with various stimuli, one of which is a guilty knowledge item (termed the probe, such as the gun used to commit a crime). The other stimuli in the test consist of control items that are of the …

The Structural Causes Of Mortgage Fraud, Jim Smith

Scholarly Works

Mortgage fraud, often a violation of federal and state criminal statutes, covers a number of different types of behavior, all of which have the common denominator of conduct that has the intent or effect of impairing the value of residential mortgage loans. Mortgage fraud has become prevalent over the past decade and shows no signs of diminishing despite the collapse of domestic housing markets during the past two years. This paper analyzes the complex relationships between prime mortgage loan markets, subprime markets, and various types of mortgage fraud. This paper concludes that the root causes of mortgage fraud are associated …

From International Law To International Conflicts Of Law: The Fragmentation Of Legitimacy, Harlan G. Cohen

Scholarly Works

This short essay, published as part of the proceedings of the 104th Annual Meeting of the American Society of International Law, confronts the problem of fragmentation in international law. Based on a longer paper, it challenges not only fragmentation’s conventional treatment as a technical or doctrinal problem but the very notion that there is a single international law community with a single doctrine of sources. On the contrary, the paper argues, what the problem of fragmentation reveals is that a single international law community is being replaced by separate, overlapping legal communities with significantly different views on law and legitimacy.

Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker

Scholarly Works

No abstract provided.

Reconstructing The Individual Mandate As An Escrow Account, Gregg Polsky

Scholarly Works

This short essay in Michigan Law Review First Impressions describes how the individual mandate could be reconstructed as an escrow account. Such a restructuring would ameliorate policy concerns regarding the mandate while still deterring the opportunistic behavior that would otherwise occur as a result of the nondiscrimination rules imposed on insurers.

Arbitrating Disputes Between Companies And Individuals: Lessons From Abroad, Peter B. Rutledge, Anna W. Howard

Scholarly Works

Congress is considered changes to the Federal Arbitration Act and the central premise underlying these bills is the idea that the parties to these agreements (typically there is an individual on one side and a company on the other) tend to occupy unequal bargaining positions. The drafters of these bills conclude from this that the individual’s choice to opt into arbitration before a dispute has arisen cannot be considered free and voluntary, and thus, the arbitration agreement should be considered void and unenforceable.

Defenders of these bills claim that the United States, when compared to other nations, stands alone in …

What I Talk About When I Talk About Health Law, Elizabeth Weeks

Scholarly Works

Invited contribution celebrating the 25th Anniversary of the Beazley Institute for Health Law & Policy.

A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials And Bad Taste In Copyright, David E. Shipley

Scholarly Works

Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other …

Portraits Of Women At Nuremberg, Diane Marie Amann

Scholarly Works

This essay reflects ongoing research that investigates women who played roles in war crimes trials at Nuremberg, Germany, and situates those women within the context of social developments during the post-World War II era. Based on an autumn 2009 presentation at the Third International Humanitarian Law Dialogs, the essay builds upon the “Women at Nuremberg” series posted at IntLawGrrls blog. The essay mentions women who were defendants, journalists, or witnesses; however, it focuses on some of the women, mostly Americans, who served as prosecutors at Nuremberg.

Judge Bell And Professional Courage, Larry D. Thompson

Scholarly Works

This article eulogizes Judge Griffin B. Bell, with an emphasis on the importance of professional standards in the legal field.

Wired: What We've Learned About Courtroom Technology, Fredric I. Lederer

Popular Media

No abstract provided.

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

Scholarly Works

Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Decisional Sequencing, Peter B. Rutledge

Scholarly Works

Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters …

The Art And Craft Of International Environmental Law, Daniel M. Bodansky

Scholarly Works

International environmental law is often closer to home than we know, affecting the food we eat, the products we buy, and even the air we breathe. Drawing on more than two decades of experience as a government negotiator, consultant, and academic, Daniel Bodansky brings a real-world perspective on the processes by which international environmental law develops, and influences the behavior of state and non-state actors.

In self-contained chapters that offer a clear guide to a complex field, Bodansky answers fundamental questions about how international environmental law works. What role can law play in addressing global environmental challenges such as climate …

Jefferson's Vision Fulfilled: The Nation's Oldest Law School Celebrates 230 Years Of Educating Citizen Lawyers, Davison M. Douglas

Popular Media

No abstract provided.

Preserving Human Potential As Freedom: A Framework For Regulating Epigenetic Harms, Fazal Khan

Scholarly Works

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development and in disease causation. In a sense, epigenetics blurs the distinction between “nature” and “nurture” as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents’ generation might affect our health now, even if we have not experienced the same exposures. In the …

At The Brink Of Free Agency: Creating The Foundation For The Messersmith-Mcnally Decision - 1968-1975, Edmund P. Edmonds

Journal Articles

"One of the most dramatic periods in baseball’s long history of labor relations occurred from 1968 through 1975. The Major League Baseball Players Association negotiated baseball’s first Basic Agreement in 1968 without the benefit of any leverage that could alter most of Organized Baseball’s long practices that controlled the players’ mobility and wages. In 1975, however, the union won an arbitration panel hearing that determined that pitchers Dave McNally and Andy Messersmith were free agents after playing one full season under the renewed option year of their contracts and filing a grievance under the newly adopted arbitration process. This stunning …

Military Lawyers, Private Contractors, And The Problem Of International Law Compliance, Laura T. Dickinson

GW Law Faculty Publications & Other Works

It is by now no secret that the United States government depends on private contractors to guard military facilities, escort convoys, conduct interrogations, train soldiers, and provide logistical support. And though private military contractors have been implicated in multiple instances of human rights violations, corruption, and waste, they are likely to become a permanent part of the military landscape. The key question, therefore, is not, should there be contractors but rather, how can we make it more likely that contractors will respect core human rights norms? And on this question, it will not be sufficient merely to focus on the …

Competition Policy And The Application Of Section 5 Of The Federal Trade Commission Act, William E. Kovacic, Mark Winerman

GW Law Faculty Publications & Other Works

Since the 1970’s, U.S. courts generally have narrowed the range of single-firm behavior subject to condemnation as monopolization under the Sherman Act. This article examines the possibility of applying principles from Section 5 of the Federal Trade Commission Act to address apparent instances of anticompetitive conduct that go beyond the reach of other federal antitrust statutes. The FTC, through Section 5, offers a superior platform for elaborating competition policy, has the tools to perform empirical and policy work that can inform the design of legal rules, and is a specialized tribunal whose Section 5 decisions have no collateral effect in …

Book Review Of Alan Boyle And Christine Chinkin, The Making Of International Law, Oxford University Press, 2007, Sean D. Murphy

GW Law Faculty Publications & Other Works

Abstract:
An Extraordinary Range of International "Rules" or "Norms" are Created Today Through Mechanisms that Do Not Fit Easily into the Traditional Sources of International Law. In the Making of International Law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics Set Their Sights on Providing a Broad Account of Such Law-Making, Looking Across Different Areas of Organizational Behavior, Both Governmental and Non-Governmental. Although this Volume Has Some Shortcomings, it is an Excellent Starting Point for Those Interested in an Engaging and Informed Survey of Various Ways in Which International Law is …