Law Commons^™

Santa Anna And His Black Eagle: The Origins Of Pari Passu?, Benjamin Chabot, Mitu Gulati

Faculty Scholarship

One of the most debated issues in international finance is the meaning of the pari passu clause in sovereign bonds. The clause is ubiquitous; it is in almost every single foreign-law sovereign bond out there. Yet, almost no one seems to agree on its meaning. One way to cut the Gordian knot is to track down the origins of the clause. Modern lawyers may have simply copied the clause from the documents of their predecessors without understanding its meaning. But surely the people who first drafted the clause knew what it meant. Four enterprising students at Duke Law School may …

Do Kinship Networks Strengthen Private Property? Evidence From Rural China, Taisu Zhang, Xiaoxue Zhao

Faculty Scholarship

This paper finds that the existence of strong kinship networks tends to limit state interference with private property use in rural China by protecting villagers against unwanted government land takings. It then distinguishes kinship networks from other kinds of social networks by showing that their deterrence effect against coercive takings is far more significant and resilient under conditions of prevalent rural-urban migration than deterrence by neighborhood cooperatives and religious groups. Finally, the paper attempts to identify and differentiate between various possible mechanisms behind these effects: It argues that kinship networks protect private property usage mainly through encouraging social reciprocity between …

“White Collar” Crimes, Samuel W. Buell

Faculty Scholarship

In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …

Competing With The “Patent Court”: A Newly Robust Ecosystem, Arti K. Rai

Faculty Scholarship

In a provocative address, Chief Judge Wood of the Seventh Circuit Court of Appeals suggests exposing the Court of Appeals for the Federal Circuit, created in 1982 to hear all appeals from patent cases, to competition from sister appellate courts. This response, published as part of a Symposium on Chief Judge Wood's address, argues that competition is indeed desirable. Whether such competition is best provided by other appellate courts is unclear, however. The more tractable approach is to improve competitive input from sources that have already emerged. These include dissenting Federal Circuit judges, parties and amici who are not "patent …

Eyewitness Identifications And Police Practices In Virginia, Brandon L. Garrett

Faculty Scholarship

Over three decades of social science research has powerfully shown that lineup procedures really matter and that eyewitness errors predictable result from substandard lineups. Yet traditionally, many police departments had no written policies at all on conducting photo arrays or lineups. In response, more police departments, prosecutors, state courts and legislatures have acted to improve identification procedures. Although much has changed in the past decade, less is known about how many police departments have not yet adopted best practices. This Essay reports the results of a 2013 survey conducted of lineup procedures in Virginia, where a new state model policy …

Big Data And Due Process, Brandon L. Garrett

Faculty Scholarship

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and …

Towards More Sustainable And Less Crisis-Driven Financial Regulation, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Hiv Infrastructure Study Columbia, Sc, Susan S. Reif, Elena Wilson, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

Shadow Banking, Financial Risk, And Regulation In China And Other Developing Countries, Steven L. Schwarcz

Faculty Scholarship

Shadow banking is growing rapidly in a number of developing countries, including China where it recently was estimated at around 20 trillion yuan (which is approximately a third the size of China's bank-lending market).' The shadow banking sector in these countries is typically weakly regulated, yet the growth of the sector is thought to pose risks to financial stability. Additional regulation therefore may be needed. Any such regulation, however, should attempt to strike a balance between reducing that risk and preserving shadow banking as an important channel of alternative funding to developing economies, particularly in the face of significant retrenchment …

Is There A Patent Troll Problem In The U.K.?, Brian Love, Christian Helmers, Luke Mcdonagh

Faculty Publications

No abstract provided.

Do University Patents Pay Off?: Evidence From A Survey Of University Inventors In Computer Science And Electrical Engineering, Brian Love

Faculty Publications

Studies of the costs and benefits of university patent ownership have, to date, focused on life sciences technology. Increasingly, however, many of the most lucrative university-owned patents relate to computing and telecommunications, not genes or pharmaceuticals. In 2007, a University of California spin-off named Eolas settled a patent suit with Microsoft for $100 million. In 2010, Cornell University won a $184 million jury verdict against Hewlett-Packard in a case that later settled on confidential terms. And most recently, in 2014, Carnegie Mellon University received a $1.5 billion judgment — one of the largest patent damages awards in history — in …

A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Some have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners …

Redesigning Sentencing, W. David Ball

Faculty Publications

Design thinking purports to take the methods of industrial and product design and apply them to social and political problems. One particularly intractable problem in California is its bloated penal code, which has expanded almost continuously over the past forty years. Since 1983, more than a dozen bills have been introduced in the CaliforniaLegislature to establish a sentencing commission. All have failed. In this paper I explore how design thinking might help frame our discussion of mass incarceration in general and sentencing commissions in particular:what kinds of changes are possible within the foreseeable future, how wecan make any changes sustainable, …

Material Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases, Kathleen M. Ridolfi, Tiffany M. Joslyn, Todd H. Fries

Faculty Publications

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. Critical to the accused is the guarantee of fair process. For the accused, fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material.This guarantee, however, is frequently unmet.In courtrooms across the nation, accused persons are convicted without ever …

Practicing Social Justice Feminism In The Classroom, Stephanie M. Wildman

Faculty Publications

No abstract provided.

A People’S History Of Collective Action Clauses, Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

For two decades, collective action clauses (CACs) have been part of the official-sector response to sovereign debt crisis, justified by claims that these clauses can help prevent bailouts and shift the burden of restructuring onto the private sector. Reform efforts in the 1990s and 2000s focused on CACs. So do efforts in the Eurozone today. CACs have even been suggested as the cure for the US municipal bond market. But bonds without CACs are still issued in major markets, so reformers feel obliged to explain why they know better. Over time, a narrative has emerged to justify pro-CAC reforms. It …

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicolas Treich

Faculty Scholarship

We examine how different welfarist frameworks evaluate the social value of mortality risk reduction. These frameworks include classical, distributively unweighted cost–benefit analysis—i.e., the “value per statistical life” (VSL) approach—and various social welfare functions (SWFs). The SWFs are either utilitarian or prioritarian, applied to policy choice under risk in either an “ex post” or “ex ante” manner. We examine the conditions on individual utility and on the SWF under which these frameworks display sensitivity to wealth and to baseline risk. Moreover, we discuss whether these frameworks satisfy related properties that have received some attention in the literature, namely equal value of …

The Heroic Corporation And First Amendment Romanticism: A Response To Professors Redish And Neuborne, Tamara R. Piety

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

What Is The Rule Of Law And Why Is It So Important?, Mortimer N.S. Sellers

Book Chapters

This chapter considers the rule of law from within the rule of law tradition, to clarify what the rule of law is, why it is so valuable, and how we can secure it.

Still Unconstitutional: Our Nation's Experiment With State-Sponsored Sex Segregation In Education, David S. Cohen, Nancy Levit

Faculty Works

Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within …

Ripple Effects In The Law: The Broadening Meaning Of An "Offer To Sell" In Patent Law, Lucas S. Osborn

Scholarly Works

No abstract provided.

Transnational Legal Services In Globalized Economics: American Leadership, Not Mere Compliance With Gats, Through Qualifying Ll.M. Degree Programs For Foreign-Educated Lawyers Seeking State Bar Admissions, Jeffrey A. Van Detta

Journal of International Business and Law

No abstract provided.

Two Paths Preventing Foreign Influence: Reforming Campaign Finance And Lobbying Law, Brittany M. Albaugh

Journal of International Business and Law

No abstract provided.

Banking, Structure, Regulation, And Supervision In 1993 And 2013: Comparison Across Countries And Over Time, James R. Barth, Daniel E. Nolle, Apanard (Penny) Prabha

Journal of International Business and Law

No abstract provided.

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

Crime Victims' Rights During Criminal Investigations? Applying The Crime Victims' Rights Act Before Criminal Charges Are Filed, Paul G. Cassell, Nathanael J. Mitchell, Bradley J. Edwards

Journal of Criminal Law and Criminology

No abstract provided.

Shadow Immigration Enforcement And Its Constitutional Dangers, Maureen A. Sweeney

Journal of Criminal Law and Criminology

No abstract provided.

Extending Sentencing Mitigation For Deserving Young Adults, Kelsey B. Shust

Journal of Criminal Law and Criminology

No abstract provided.

Teaching Law Day: A Senior Moment, Michael A. Mogill

Faculty Scholarly Works

This article is a recount of a talk given at a nursing home. The talk regarded many topics but the main focus of the talk was an interactive discussion regarding the Liebeck v. McDonald's Restaurants, or the Hot Coffee case.

Negotiating Peremptory Challenges, Caren Myers Morrison

Journal of Criminal Law and Criminology

No abstract provided.