Law Commons^™

Preemption And Alteration Of Epa And State Authority To Regulate Greenhouse Gases In The Kerry-Lieberman Bill, Bradford Mccormick, Hannah Chang

Sabin Center for Climate Change Law

The recently-released discussion draft of the Kerry-Lieberman bill (KL), officially titled the American Power Act, contains numerous provisions that affect the role of states in addressing climate change as well as the Environmental Protection Agency’s (EPA) authority under the Clean Air Act (CAA). Preemption has been the subject of intense debate and speculation since the passage of the Waxman-Markey climate bill (WM) in June 2009, and commentators have questioned whether KL’s preemption measures would (and should) have the effect of “a scalpel or a sledgehammer” on existing state and EPA authority. The following paper contributes to the discussion by summarizing …

Copyright's First Compulsory License, Howard B. Abrams

Santa Clara High Technology Law Journal

No abstract provided.

The 1909 Copyright Act In International Context, Daniel Gervais

Santa Clara High Technology Law Journal

No abstract provided.

The Evolving Role Of For Profit Use In Copyright Law: Lessons From The 1909 Act, Lydia Loren

Santa Clara High Technology Law Journal

No abstract provided.

Protection For Works Of Foreign Origin Under The 1909 Copyright Act, Tyler T. Ochoa

Santa Clara High Technology Law Journal

No abstract provided.

Relief For Ip Rights Infringement Is Primarily Equitable: How American Legal Education Is Short-Changing The 21st Century Corporate Litigator, Charles E. Rounds Jr.

Santa Clara High Technology Law Journal

No abstract provided.

Prospectively Curing Inequitable Conduct Through Reissue: Reconsidering A Well-Settled Principle, Daniel A. Klein

Santa Clara High Technology Law Journal

No abstract provided.

Finding The Patent Infringement Mastermind: The Control Or Direction Standard For Joint Infringement, Keith Jaasma

Santa Clara High Technology Law Journal

No abstract provided.

Confronting The Past: The Elusive Search For Post-Conflict Justice, Bruce Ottley, Theresa Kleinhaus

College of Law Faculty

No abstract provided.

Perspectives On International Criminal Justice, M. Bassiouni

College of Law Faculty

No abstract provided.

Perspectives On International Criminal Justice, M. Bassiouni

College of Law Faculty

No abstract provided.

The Promise And Pitfalls Of Neuroscience For Criminal Law And Procedure, Susan Bandes

College of Law Faculty

No abstract provided.

Settling Idea Cases: Making Up Is Hard To Do, Mark Weber

College of Law Faculty

Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues—and unique pitfalls—that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement …

Unreasonable Accommodation And Due Hardship, Mark Weber

College of Law Faculty

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin.  The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; …

The End Of Originalism, Jeffrey Shaman

College of Law Faculty

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline.

Originalism is a radical departure from the Supreme Court’s well-established jurisprudence of a living …

Hr And Mission, Craig Mousin, Gary Miller

Mission and Ministry Publications

No abstract provided.

403(B) Retirement Plans And Socially Responsible Investments, Craig Mousin

Mission and Ministry Publications

No abstract provided.

Front Matter

Michigan Law Review

No abstract provided.

Voting As Veto, Michael S. Kang

Michigan Law Review

This Article introduces an alternate conception of voting as vetobased on "negative preferences" against a voter's least preferred outcomes-that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting as veto …

Wasting The Corporate Waste Doctrine: How The Doctrine Can Provide A Viable Solution In Controlling Excessive Executive Compensation, Steven Clayton Caywood

Michigan Law Review

In the midst of the global recession of the late 2000s, there was an outcry against corporate executives and what the public deemed to be their excessive compensation. Although this anger is still featured in today's headlines, it is nothing new. In fact, excessive executive compensation complaints arose when the very concept of a corporation was still new. Most of the complaints that the public has leveled have had little effect on boards of directors' decisions. Occasionally, however the outcry is so great that the public compels a company's leadership to take action. This happened early in 2009 when American …

Subconstitutionalism, Eric A. Posner, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

Subconstitutionalism refers to two-tiered constitutional systems where a superior state and a group of subordinate states exercise overlapping control of a single population. Federalism is a familiar version of subconstitutionalism but scholarship on federalism focuses on the design of the superior state's constitution. Our focus is the design of the subordinate state's constitution. Our question is, how does the constitution of an independent state change when it becomes subordinate to another state in a federalist or related subconstitutional system? Applying agency theory, we argue that because the superior state reduces agency costs as between the subordinate state's government and its …

The Future Of Taxation, Joseph Isenbergh

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Why (And When) Judges Dissent: A Theoretical And Empirical Analysis, Richard A. Posner, William M. Landes, Lee Epstein

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call "dissent aversion," which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size …

What Do Federal District Judges Want? An Analysis Of Publications, Citations, And Reversals, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati

Coase-Sandor Institute for Law & Economics Research Paper Series

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer …

The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan

All Faculty Publications

Growing public expectations that the Olympic Movement and Olympic Host City Organizing Committees be socially, environmentally and economically responsible has made a commitment to integrate sustainability principles and practices a common theme in the bids of cities competing to host the Games. To understand the growing role of sustainability as an Olympic theme, the authors trace the evolution of the sustainability aspirations of the Olympic Movement by looking at the key Olympic Games and bids in this process. The authors determine that unlocking the potential of the Olympic Games to use sport to attract new audiences to sustainable living cannot …

Charities And Terrorist Financing, David G. Duff

All Faculty Publications

A decade after the bombing of Air India Flight 182 in June 1985, many Canadians were shocked to learn that the Babbar Khalsa Society – a militant organization dedicated to the establishment of an independent state in northern India, members of which are believed to have planned the Air India bombing – had been granted charitable status in Canada. Although the organization’s charitable status was revoked in 1996, reports also suggested that funds collected to support Sikh temples in Canada may have been diverted to support Sikh militancy in India. This article examines the relationship between charities and terrorist financing …

The Backlash Against Investment Arbitration: Perceptions And Reality, Michael Waibel, Asha Kaushal, Kwo-Hwa Liz Chung, Claire Balchin

All Faculty Publications

Commentators increasingly question whether a backlash against the foreign investment regime is underway. This book, the outgrowth of a conference organized by the editors at Harvard Law School on April 19, 2008, aims to uncover the drivers behind the backlash against the current international investment regime. A diverse set of contributors reflect on the current state and the future direction of the international investment regime, and offer some tentative solutions for improvement: academics, practitioners, government officials and civil society. Contributors assess whether the current regime of investment arbitration is in crisis. They take a step back to look at the …

The Slave Trade Is Back: Confronting Human Trafficking In Canada And Beyond, Benjamin Perrin

All Faculty Publications

Individual liberty is being systematically attacked in Canada and around the world with a resurgence in the last two decades of human trafficking — a modern-day form of slavery. Modern-day slavery is thriving in countries as diverse as Cambodia and Costa Rica, India and Italy, as well as the Ukraine and the United States itself. International policing agencies say that illegal profits from modern-day slavery rival that of drug and weapons trafficking. While countries around the world have been tackling the issue for over a decade, Canada’s response has been comparatively lethargic due to a lack of widespread awareness about …

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …