Law Commons^™

The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a species of contract. Although this characterization is correct, it is unduly narrow if used as the exclusive lens for assessing insurance policies, which are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. Recognizing this has significant implications regarding the manner in which insurance policies are construed in coverage disputes and suggests that policy construction can be improved by not only performing traditional contract analysis of disputed policies but also by appreciating the particular function of the insurance policy in question …

A Writing Life, Linda H. Edwards

Scholarly Works

This essay was written on the occasion of the 25th anniversary of the Legal Writing Institute (LWI), celebrated at Mercer University School of Law, LWI’s current home. In a sense the essay is retrospective, for it is written to honor the scholars whose work has moved us toward a vision of legal writing scholarship and all it can offer. Many of those experienced and inspiring scholars have kindly offered their advice for inclusion in this essay. That advice is probably the most important content included here, and it is placed, appropriately, at the end of the text as the essay’s …

W(H)Ither Economic Substance?, Leandra Lederman

Articles by Maurer Faculty

Transactions that claim inappropriate tax benefits are a perennial problem. When the IRS claims a transaction is abusive, courts generally examine whether the taxpayer had a business purpose and whether the transaction had economic substance (essentially a prospect of profit before taxes). This two-pronged "economic substance doctrine" developed from a series of Supreme Court cases.

Unfortunately, the economic substance doctrine provides a poor proxy for the real question, which was the focus of the early cases-whether the claimed tax results are consistent with Congress's intent. One important drawback of the shift from a focus on congressional intent to a focus …

Payments Data Security Breaches And Oil Spills: What Lessons Can Payments Security Learn From The Laws Governing Remediation Of The Exxon Valdez, Deepwater Horizon, And Other Oil Spills?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

The Disordered And Discredited Plaintiff: Psychiatric Evidence In Civil Litigation, Deirdre M. Smith

Cardozo Law Review

This Article examines civil defendants' use of evidence of a plaintiff's alleged current or prior psychiatric diagnosis or treatment by analyzing and critiquing the three primary rationales offered in support of the relevancy of such evidence: (1) to suggest an alternative cause of the plaintiff's alleged psychological injuries; (2) to impeach the plaintiff's credibility by asserting that a mental illness interferes with the plaintiff's ability to recount or to perceive events accurately; and (3) to reveal certain propensities that inform how the plaintiff likely acted with respect to the events at issue in the litigation. While attaching a label of …

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi L. Short, Michael W. Toffel

Faculty Scholarship

No abstract provided.

Countering The Majoritarian Difficulty, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

Faculty Scholarship

No abstract provided.

Beyond The 'Chilling Effect': Immigrant Worker Behavior And The Regulation Of Occupational Safety & Health, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

This article forms part of a broader scholarly project that seeks to understand the root causes of immigrant worker injury and fatality trends in the U.S., and the ways in which legal norms and regulatory practices shape these trends. This particular contribution examines the broad range of attributes and experiences that influence immigrant worker behavior relating to occupational safety and health -- in the context of interactions with employers and regulatory bodies, and relating to the choices that workers themselves make about how to perform their work.

Drawing upon scholarship from multiple disciplines, the article encourages a more robust understanding …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Scholarly Articles in Law Reviews & Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Giving Applicants For Veterans' And Other Government Benefits Their Due (Process), Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Survey Of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Drawing on a survey of U.S. civil servants engaged in developing regulations across a wide variety of agencies, this chapter analyzes how bureaucrats in key positions view the impact on their work of “electronic rulemaking” – that is, the creation of online opportunities for members of the public to comment on proposed administrative regulations. There is strong evidence that rulemakers appreciate the value of new technologies for public participation purposes and for internal administration and coordination functions, but less evidence that they see the utility of e-rulemaking for improving the quality of administrative rules.

Preserving A Political Bargain: The Political Economy Of The Non-Interventionist Challenge To Monopolization Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

The antitrust rules governing exclusionary conduct by dominant firms are among the most controversial in U.S. competition policy. During the first decade of the twenty-first century, they were debated in three arenas, involving legal policy, economic policy, and politics. In each arena, the dispute mainly arose as criticism of traditional standards by advocates of less intervention. Viewed through a political economy lens, the controversy can be understood as a potential challenge to an informal political bargain reached during the 1940s by which competition was adopted as national economic policy in preference to regulation or laissez-faire. From this perspective, and applying …

Moving Global Health Law Upstream: A Critical Appraisal Of Global Health Law As A Tool For Health Adaptation To Climate Change, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

The relatively new discipline of global health law is a potentially powerful tool for promoting health adaptation to climate change. Unfortunately, global climate change will intensify exactly those health threats that have not been adequately addressed by multilateral cooperation with respect to health in the past, which has been dominated by security-based and treatment-focused approaches. Recent focus on biosecurity concerns such as the global spread of emerging infectious diseases and biological terrorism has further entrenched a security-based approach to global health law and policy that has origins in the earliest attempts at international health cooperation and is currently embodied in …

Mitigation/Adaptation And Health: Health Policymaking In The Global Response To Climate Change And Implications For Other Upstream Determinants, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Assessing The Impact Of Federal Law On Public Health Preparedness, Lindsay Wiley, Ben Berkman, Susan C. Kim

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Supporting Inclusiveness At Seattle U. And In The Law, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Preempting Justice: Precrime In Fiction And In Fact, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Copyright Principles Project: Directions For Reform, Michael W. Carroll, Pamela Samuelson, Members Of The Cpp

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Dual Purposes Of The U Visa Thwarted In A Legislative Duel, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Congress created the U visa non-immigrant classification to achieve the dual purposes of both strengthening law enforcement’s ability to pursue domestic violence cases and protecting victims. This article reveals how the gatekeeper function of the law enforcement certification in the U visa petition, as set out in the interim final regulations, undermines Congress’s dual purposes and thwarts the statutory framework entirely. The law enforcement certification provisions of the U visa interim final regulations irreparably shift considerable centralized power to law enforcement personnel, subjecting the certification process to inconsistent application and misapplication.

U Visas allow undocumented non-immigrants who are victims of …

Recut, Reframe, Recycle: The Shaping Of Fair Use Best Practices For Online Video, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

This article discusses the intertwining of creative and copyright practices, as demonstrated by the emergence and evolution of standards to assess fair use in online video from 2007-2009. The development of such standards demonstrates the effectiveness of community-based standards to expand the utility of fair use and the importance of practice in affecting the interpretation of law. This process demonstrates the relationship between copyright practice and creative practice.

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Raising The Bar: Us Legal Education In An International Setting, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Empirical Modalities: Lessons For The Future Of International Investment, Susan Franck

Scholarly Articles in Law Reviews & Journals

Empirical approaches add value to international investment law and aid in its evolution. Nevertheless, we must "fit the forum to the fuss." When transforming international law, we select proper methodologies for specific research questions and make international law empiricism part of a larger post-structuralist, pluralist legal dialogue. In connection with that, my remarks first place empirical research on international investment in a historical context. I then discuss where the research is today and offer an example of how empirical methods can be used to understand, reassess, and possibly transform international investment law and related institutions. Finally, I consider the future …

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Implications Of The Copenhagen Accord For Global Climate Change, David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Writer's Block: The "Ins And Outs" Of Good Legal Writing, Part One, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.