Law Commons^™

Property Rules And Defensive Conduct In Tort Law Theory, Keith N. Hylton

Faculty Scholarship

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine?

To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide …

Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael C. Harper

Faculty Scholarship

After recounting the legislative history of the Civil Rights Act of 1991, this article reconsiders the legislative compromise that allowed in this Act for capped compensatory and punitive damages as remedies for Title VII violations. This reconsideration is made in light of the Court’s decision in Kolstad v. American Dental Association, granting employers protection from a punitive damage remedy if they can demonstrate a good faith effort to comply with the Act. The article argues that this holding obviates the need for damage cap protection of innocent employers. It does so by enabling employers to shield themselves from the threat …

Debts, Defaults And Details: Exploring The Impact Of Debt Collection Litigation On Consumers And Courts, Mary B. Spector

Faculty Journal Articles and Book Chapters

This Article explores consumer collection litigation through original research from more than five hundred cases filed in the Dallas County courts. It analyzes the data within the context of the modern debt collection industry, paying special attention to the role of debt buyers and to the peculiar legal issues their involvement raises. After explaining the methodology and mechanics used to gather and analyze the data, the Article discusses the data collected, identifying and analyzing the most significant findings and placing them within a larger legal landscape. While the research confirms anecdotal reports of litigation abuse in consumer collection cases, it …

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, …

Wto-Compliant Protection Of Fundamental Rights: Lessons From The Eu Privacy Directive, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Nation states often create legislative schemes regulating services industries in order to protect fundamental rights such as human life, economic security, or human security. World Trade Organization members are constrained in their creation of such regulatory schemes by their obligations under the General Agreement on Trade in Services (‘GATS’). WTO members raised concerns about such constraints even before the creation of GATS. As a result, GATS contains clauses specifically designed to allow members enough regulatory latitude to protect important domestic social interests, such as fundamental rights, while simultaneously liberalising trade in services. WTO jurisprudence interpreting these clauses, however, has called …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremecy, Gary S. Lawson

Faculty Scholarship

With Stare Decisis and Constitutional Text, 1 Jonathan Mitchell has produced what I think is the most interesting and creative textual defense2 (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases.3 Mitchell’s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule—a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct …

A Cautionary Tale On Arbitral Authority: Judges, Arbitrators And The Stolt-Nielsen Decision, William W. Park

Faculty Scholarship

Few matters prove as slippery as the allocation of tasks between judges and arbitrators in commercial disputes. A choice to arbitrate implicates waiver of access to otherwise competent courts in favor of adjudication which is both private and binding. Respect for this bargain means that judges should not normally disturb an arbitrator’s substantive conclusions.

Criminal Law: Egypt, Sadiq Reza

Faculty Scholarship

This chapter presents the substantive criminal law of Egypt according to the sources of that law: the 1971 Constitution, the 1937 Penal Code, and other legislation; decisions by the Supreme Constitutional Court (SCC), the Court of Cassation, and other organs of the Egyptian judiciary; and administrative and executive regulations. The evolution of modern Egyptian criminal law is explained, and contemporary scholarly commentary is referenced; also addressed are the constitutional amendments of 2007, and controversial aspects of the law and its enforcement such as the use of emergency and military courts and the prosecution of alleged homosexuals. The chapter thus serves …

Pay For Banker Performance: Structuring Executive Compensation For Risk Regulation, Frederick Tung

Faculty Scholarship

Excessive risk taking by firm managers did not originate with the Financial Crisis of 2007-08. Though bankers had special incentives to take big risks in the period before the Crisis, the incentive effects of equity-based compensation have been understood for some time. Among other things, equity compensation tends to induce greater risk taking by aligning managers’ risk preferences with those of equity holders. Longstanding government guaranties of bank liabilities additionally served to intensify bankers’ risk taking incentives.

I propose to ameliorate this gambler’s incentive with a new approach to compensation at the largest banks, one that explicitly accounts for the …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Improving Antibiotic Markets For Long Term Sustainability, Aaron S. Kesselheim, Kevin Outterson

Faculty Scholarship

The world faces a worsening public health crisis: A growing number of bacteria are resistant to available antibiotics. Yet there are few new antibiotics in the development pipeline to take the place of these increasingly ineffective drugs. We review a number of proposals intended to bolster drug development, including such financial incentives for pharmaceutical manufacturers as extending the effective patent life for new antibiotics. However, such strategies directly conflict with the clear need to reduce unnecessary antibiotic prescriptions and could actually increase prescription use. As an alternative, we recommend a two-prong, “integrated” strategy based on prizes administered through the insurance …

Germ Shed Management In The United States, Kevin Outterson

Faculty Scholarship

The U.S. Medicare program reimburses only for discrete treatments of individuals with infections, but fails to pay for infection control or antibiotic stewardship more generally. By focusing solely on discrete hospitals and patients, Medicare ignores the larger epidemiological reality - that hospitals, nursing homes and other institutions operate within a germ shed. Under current Medicare rules, institutions that invest in infection control or antibiotic stewardship, may actually lose money and benefit rival firms in the market. In effect, current Medicare rules subsidize MRSA pollution. Worse yet, Medicare rules block potentially efficient Coasian contracts to promote private coordination within germ sheds.

Whose Claim Is This Anyway? Third Party Litigation Funding, Maya Steinitz

Faculty Scholarship

Third party litigation funding, or litigation finance, is a new industry composed of institutional investors who invest in litigation by providing finance in return for an ownership stake in a legal claim and a contingency in the recovery. Its emergence has been recognized as one of the most significant developments in civil litigation today. It will transform access to justice, and affect numerous areas of the law including corporate law, torts, intellectual property, environmental law, employment law and international law. Hailing from the U.K. and Australia, the practice is de facto prohibited in the U.S., largely through ethical rules disallowing …

The Role Of Government In A Free Society: The Conception Of Lester Frank Ward, Sotirios A. Barber, James E. Fleming

Faculty Scholarship

This essay, part of a larger project, considers theories of the unitary executive and what the best of these theories imports for the rule of law and the future of constitutional theory as a whole. As we see it, at least in a sense that predates Bush administration apologist John Yoo,' the unitary executive is here to stay. Precisely because the American constitutional executive is a unitary power, President Obama can close Guantanamo unilaterally, without Congress's leave. President Obama, on his own, can also revoke Bush's executive orders regarding secrecy. He can renounce Bush administration memoranda attempting to justify torture, …

Was Mechanization De-Skilling? The Origins Of Task-Biased Technical Change, James Bessen

Faculty Scholarship

Did nineteenth century technology reduce demand for skilled workers in contrast to modern technology? I obtain direct evidence on human capital investments and the returns to skill by using micro-data on individual weavers and an engineering production function. Weavers learned substantially on the job. While mechanization eliminated some tasks and the associated skills, it increased returns to skill on the remaining tasks. Technical change was task-biased, much as with computer technology. As more tasks were automated, weavers’ human capital increased substantially. Although technology increased the demand for skill like today, weavers’ wages eventually increased and inequality decreased, contrary to current …

Upper-Level Courses: Three Examplars, Mark Fagan, Tamar Frankel, Eric J. Gouvin, Kathy Z. Heller

Faculty Scholarship

I'm Mark Fagan, and I co-teach a course on securitization with Tamar Frankel at Boston University School of Law. We have come together to teach several interdisciplinary courses that combine law, business and public policy. Our course on securitization is a wonderful exemplar because it touches so many aspects of law as well as business and public policy.

We spent quite a bit of time wrestling with how to teach it. Do you teach it in a process fashion? Do you teach it by legal topic? Do you take examples and examine them? After much debate and discussion, we actually …

Ethical Issues In Business And The Lawyer's Role, Robert Rhee, Carol Morgan, Tamar Frankel, Mark Fagan

Faculty Scholarship

Q&A with Robert Rhee, Carol Morgan, Tamar Frankel, and Mark Fagan regarding courses focused on business ethics.

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Good afternoon everyone. I am Carol Morgan. I am with the University of Georgia School of Law's Business Law and Ethics program. I'm joined today by very distinguished panelists, Tamar Frankel from Boston University and Robert Rhee from the University of Maryland. You will hear a lot more about them during our program today. I am glad to see this interest in the topic of business ethics. Law schools have not traditionally put a lot of attention or focus on the subject …

E.U. Law In U.S. Legal Academia, Daniela Caruso

Faculty Scholarship

The history of EU law in the JD curriculum is a classical tale of rise and fail. An avant garde, boutique offering in the 1970s, and a fairly popular course in the 1990s, today EU law in US law schools is slowly losing prominence. This Article begins by tracking this parabolic trajectory and argues that the discipline both rose and fell for contingent reasons that are mostly unrelated to its pedagogical and analytical significance. The Article then provides a critical appraisal of what EU law is uniquely poised to offer both in the classroom and as a subject for legal …

Current And Potential Methods To Undermine A Competitor’S U.S. Patent Application, W. Keith Robinson, M. Haq

Faculty Journal Articles and Book Chapters

The current PTO procedures provide a few choices for a third party to influence the prosecution of a competitors patent application prior to issuance. In the case of protests and public use hearings, the third party may submit documents and explain their relevancy, but must know of the application’s existence prior to publication in order to meet the timeliness requirement. In the case of third-party submissions, the third party has a short two-month window post-publication, but cannot explain the relevancy of the documents submitted. In each case, the time frame within which a third party can act is extremely limited. …

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Journal Articles and Book Chapters

No abstract provided.

The In Rem Forfeiture Of Copyright-Infringing Domain Names, Andrew Sellars

Faculty Scholarship

In the summer of 2010, the Immigration and Customs Enforcement Division of the Department of Homeland Security began "Operation In Our Sites," an enforcement sweep targeted towards websites allegedly dealing in counterfeit goods and copyright-infringing files. The operation targeted the websites by proceeding in rem against their respective domain names. For websites targeted for copyright infringement, ICE Agents used recently-expanded copyright forfeiture remedies passed under the 2008 PRO-IP Act, providing no adversarial hearing prior to the websites being removed, and only a probable cause standard of proof.

This Paper examines three specific harms resulting from Operation In Our Sites, and …

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Faculty Scholarship

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

Tweeting To Topple Tyranny, Social Media And Corporate Social Responsibility: A Reply To Anupam Chander, Erika George

Faculty Scholarship

This Essay offers critical reflections on the role of social media in social change and outlines how the obligation of corporations in the information communications technology sector to avoid complicity in rights violations may evolve over time. Part I explores the Internet's potential to further democratic discourse and inclusion or foster discrimination and exclusion. It also queries whether the Internet industry has an obligation to protect against hate propaganda. Part II examines whether other industry sectors can also be said to have special obligations based on the human rights consequences of their conduct. Part III explains the nature of the …

Website Design As Contract, Woodrow Hartzog

Faculty Scholarship

Few website users actually read or rely upon terms of use or privacy policies. Yet users regularly take advantage of and rely upon website design features like privacy settings. To reconcile the disparity between boilerplate legalese and website design, this article develops a theory of website design as contract. The ability to choose privacy settings, un-tag photos, and delete information is part of the negotiation between websites and users regarding their privacy. Yet courts invariably recognize only the boilerplate terms when analyzing online agreements. In this article, I propose that if significant website features are incorporated into the terms of …

Hiv And Women: Incongruent Policies, Criminal Consequences, Aziza Ahmed

Faculty Scholarship

UN Women must take an aggressive role in the standardization of laws and policies at the global and national level where their incongruence has negative and often criminal consequences for the health and lives of women and girls. This article focuses in on three such examples: opt-out testing for HIV, criminalization of vertical transmission, and the new World Health Organization guidelines on breastfeeding.

Feminism, Power, And Sex Work In The Context Of Hiv/Aids: Consequences For Women's Health, Aziza Ahmed

Faculty Scholarship

This paper examines the involvement of feminists in approaches to sex work in the context of HIV/AIDS. The paper focuses on two moments where feminist disagreement produced results in favor of an "anti-trafficking" approach to addressing the vulnerability of sex workers in the context of HIV. The first is the UNAIDS Guidance Note on Sex Work and the second is the "anti-prostitution pledge" found in the Presidents Emergency Plan for AIDS Relief. This article also examines the anti-sex work position articulated by abolitionist feminists and demonstrates the unintended consequences of the abolitionist position on women's health. By examining the actual …

Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article is based on the Interim Report, Creditor Claims in Arbitration and in Court, issued in November 2009 by the Searle Civil Justice Institute's Consumer Arbitration Task Force. It seeks to compare the outcomes of debt collection arbitrations to the outcomes of debt collection cases in court to help in evaluating arbitration as a means of resolving consumer disputes. The arbitration cases examined are debt collection cases administered by the American Arbitration Association (AAA) as part of its consumer arbitration docket, supplemented by cases brought by a single debt buyer as part of a consumer debt collection program administered …

Anger And Compassion On The Picket Line: Ethnography And Emotion In The Study Of Westboro Baptist Church, Rebecca Barrett-Fox

Journal of Hate Studies

Feminist ethnographic methods stress the role of empathy for research subjects and researchers’ willingness for their work to be useful to their subjects. When the research subjects are “unloved groups,” though—people whose actions or beliefs are hateful or harmful—some ethnographers argue that such empathy and empowerment is misplaced or leads to uncritical scholarship. In this reflection on the author’s ethnographic study of Westboro Baptist Church, a small Kansas-based congregation infamous for preaching its anti-gay theology at funerals, including the funerals of fallen servicemen and -women, she questions the usefulness of denying an emotional connection with “hatemongers.” Instead, she argues for …

‘Combating The Scourge’: Constructing The Masculine ‘Other’ Through U.S. Government Anti-Trafficking Campaigns, Sarah L. Steele

Journal of Hate Studies

The author argues that nativism, racism, and anti-immigrant sentiment presented by representatives of the U.S. government in the context of human trafficking leaves both victims and traffickers portrayed as one-dimensional criminals. Current anti-trafficking regimes embody and restate xenophobic reactions directed against illegal migrant men, while often disguising the role domestic actors have in trafficking. Additionally, the images presented imply that traffickers are lacking in “proper” masculinity, particularly of the sort embraced by Americans. This article not only explores how government anti-trafficking statements made between 1998 and 2010 create and reinforce divides in masculinities based on regimes of racial domination, but …

Habits Of Hate: A Pragmatist Analysis Of Habits Of Racism And Nativism, Terrence Macmullan

Journal of Hate Studies

There are many different ways of recognizing, describing, and combating racism. This essay extends my previously published research on the topic of whiteness and habit to advance the argument that A) racism (by which I mean primarily white supremacist racism directed against people of color) still exists as a corrosive impediment to the realization of a truly fair and democratic American community, and B) it is best understood as a network of flexible, persistent, yet correctable habits. The primary value of seeing racism in America as being a problem of bad habits rather than as conscious actions or attitudes is …