Law Commons^™

Predicting Outcomes In Investment Treaty Arbitration, Susan Franck

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Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

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In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Exclusionary Conduct Of Dominant Firms, R&D Competition, And Innovation, Jonathan Baker

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This paper evaluates the innovation consequences of antitrust enforcement against the exclusionary conduct of dominant firms through a Nash equilibrium model of research and development (R&D) competition to create new products. In the two-firm model, whether one firm regards the other firm’s R&D investment as a strategic complement or strategic substitute turns on an increasing differences condition: whether the first firm’s incremental benefit of increased R&D investment is greater if its rival’s R&D effort succeeds or if its rival’s R&D effort fails. Antitrust prohibitions on pre-innovation exclusion and post-innovation exclusion are found to be effective in different strategic settings: preventing …

Sharing Research Data And Intellectual Property Law: A Primer, Michael Carroll

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Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security …

The Road To Precautionary Review Of Financial Products, Hilary Allen

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Financial innovation introduces new and complex products into the financial system, providing market participants with more bespoke ways to manage their risk, return and liquidity. However, by increasing the complexity of the financial system, financial innovation also compromises financial stability. Faced with the rapid pace of financial innovation, regulators have two options. One is to seek to meet the complexity of the industry with complex regulation, in an arms race that under-resourced regulators are bound to lose. The less explored (and more controversial) path is for regulators to try to reduce the complexity of the financial system by limiting financial …

Reframing The Socratic Method, Jamie Abrams

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While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and upper-level courses. This article highlights how the Socratic method limits the depth and breadth of innovations in law teaching and can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms. Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward …

The Many Faces Of Transparency, Padideh Ala'i

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Transcript from the Proceedings of the Annual Meeting of American Society of International Law panel on the "Role of Transparency at the World Trade Organization."

Should The American Grand Jury Survive Ferguson, Roger Fairfax

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The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

The Financial Stability Oversight Council (Fsoc): It's Not All About The Designation, Hilary Allen

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The recession that followed the financial crisis of 2007-2008 illustrated just how important financial stability is:when the financial system fails, it results in credit contractions that can cause seismic problems for the economyat large. Because financial institutions lack the incentives, information and tools to reduce the amount of risk inthe financial system as a whole, the vital task of overseeing and regulating for financial stability must necessarilybe carried out by a public body.

In Search Of The Real Roberts Court, Stephen Wermiel

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No abstract provided.

Hoop Dreams Deferred: The Wnba, The Nba, And The Long-Standing Gender Inequity At The Game’S Highest Level, N. Jeremi Duru

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Introduction: The top three picks in the 2013 Women's National Basketball Association (WNBA) draft were perhaps the most talented top three picks in league history, and they were certainly the most celebrated.' Brittney Griner, Elena Delle Donne, and Skylar Diggins were phenomenal youth players, attracting attention from collegiate coaches shortly after they began playing competitively. Delle Donne received her first major university scholarship offer when she was in the seventh grade, and Diggins received her first in the eighth. Griner did not start playing competitive basketball until her freshman year of high school, but before long, she too was receiving …

Increasing Women’S Political Participation In Lebanon: Reflections On Hurdles, Opportunities, And Hope, Camille Nelson, Zeina Chemali, Tanya Henderson

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Lebanon stands out in the Middle East for its relative political openness, religious freedom, and the academic and professional achievements of Lebanese women. Yet, paradoxically, it has one of the lowest rates of women's political participation in the region. This paper is the result of an initiative undertaken by the Lebanese government in July 2012 to increase women's political participation. Through this initiative, sex-segregated workshops on women's political empowerment were held for male and female representatives of Lebanon's political parties. The goal was to start a productive conversation that would ultimately lead to progress from the 2012 status quo of …

Exploited At The Intersection: A Critical Race Feminist Analysis Of Undocumented Latina Workers And The Role Of The Private Attorney General, Llezlie Green

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Undocumented Latina workers experience wage theft and other workplace exploitation at alarmingly high rates. The stock stories associated with immigrant workers often involve male day laborers or female domestic workers and fail to capture the experiences of women toiling in the farms, restaurants, factories, and home and business cleaning services that employ hundreds of thousands of immigrant women. The resulting invisibility of undocumented Latina women in the typical narratives parallels the paucity of undocumented Latina workers who make legal claims against their exploitative employers. Their distinct experiences are characterized by multiple intersecting vulnerabilities based upon their ethnicity, gender, and immigration …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

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The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Specialized Standards Of Review, Jonas Anderson

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ABSTRACT The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for "clear error, " and questions of discretion for "abuse of discretion. Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of "deference " should be altered when the appellate court is a specialized court. Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly …

Giving As Governance: Philanthrocapitalism And Modern-Day Slavery Abolitionism, Janie Chuang

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This Essay examines the potential influence of a new breed of actor in the global antitrafficking arena: the venture philanthropist, or "philanthrocapitalist." Philanthrocapitalists have already helped rebrand "trafficking" as "modern-day slavery," and have expressed their ambitions to lead global efforts to eradicate the problem. With their deep financial resources and access to powerful networks, philanthrocapitalists hold tremendous power to shape the future trajectory of the antitrafficking movement. this Essay warns, however, against the possibility that philanthrocapitalists could also reconfigure the landscape of global antitrafficking policymaking, marginalizing or even displacing other actors' efforts to address the problem.

Preventing Private Inurement In Tranched Social Enterprises, Benjamin Leff

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No abstract provided.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

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This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

It's Time To Remove The 'Mossified' Procedures For Ftc Rulemaking, Jeffrey Lubbers

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This article, prepared for The George Washington Law Review’s Symposium “The FTC at 100,” addresses the FTC’s rulemaking process — specifically the quasi-adjudicative process mandated by the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act of 1975 and the additional procedures added by the Federal Trade Commission Improvements Act of 1980 (collectively called the “Magnuson-Moss Procedures”). The article compares how long it took the FTC to complete or terminate the rulemakings it undertook under the Magnuson-Moss Procedures (including amendments to previously issued rules) with the amount of time it took the FTC to issue rules under the “regular” Administrative Procedure …

Court Competition For Patent Cases, Jonas Anderson

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The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.

This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition …

The Politicization Of Legal Expertise In The Ttip Negotiation, Fernanda Nicola

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No abstract provided.

Financial Product Complexity, Moral Hazard, And The Private Law, Heather Hughes

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Extensive debate surrounds the question of how regulators should respond to the externalization of risk associated with moral hazard in financial markets. The capacity of market actors to externalize risk is related to transactional complexity. Complexity, for example, augments reliance on valuation methods that can obscure risk, aggravating moral hazard. Recently, scholars and policymakers have articulated strategies for regulating transactional complexity that, this Article finds, reflect a shift from a contract law to a property law rubric for understanding financial products. This Article articulates this shift and assesses its regulatory implications. Some call for standardization of financial products. Others call …

Publicly-Traded Llcs: The New Kid On The Exchange, Mary Siegel

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No abstract provided.

Code Of Best Practices In Fair Use For The Visual Arts, Peter Jaszi

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No abstract provided.

Promises Kept, Promises Broken, Promises Deferred: The Americans With Disabilities Act, Robert Dinerstein

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This article, which is part of a 25th anniversary symposium on the ADA's impact on people with intellectual and developmental disabilities, argues that although the ADA has led to some demonstrable improvements in the lives of people with intellectual disabilities, in some areas it has been disappointing (especially because of well-known restrictive court decisions or unrealistic expectations of what the ADA could achieve), while in still other areas the success of the ADA is still "to be determined." The ADA cannot by itself eliminate stigma against people with disabilities, and it is up to advocates to push for judicial and …

Closing Plenary: Preventing Torture In The Fight Against Terrorism, Claudio Grossman

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No abstract provided.

Helping Law Students Get The Help They Need: An Analysis Of Data Regarding Law Students' Reluctance To Seek Help And Policy Recommendations For A Variety Of Stakeholders, David Jaffe, Jerome M. Organ, Katherine Bender

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This article summarizes some specific results from the Survey of Law Student Well-Being, which the authors administered as a voluntary and confidential web-based survey at 15 diverse law schools in the United States from February 2014 to May 2014.

This is the first survey to assess alcohol and drug use among law students since 1991 and is the first ever to assess prescription drug use/misuse, mental health issues, and help-seeking attitudes. The primary goals of collecting and analyzing the responses from the Survey of Law Student Well-Being were to better understand:

1) alcohol and drug use among law students,

2) …

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

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The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Introduction To Worker Cooperatives And Their Role In The Changing Economy, Priya Baskaran

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This article advocates for cooperatives as a vehicle for protecting and empowering vulnerable workers, like those in New York’s nail salons. Some may argue that worker cooperatives are unnecessary and that advocacy groups and legislation would be just as effective. California has a nonprofit, the California Healthy Nail Salon Collaborative (CHNSC), which is dedicated to advocating for healthy working conditions for nail workers. The organization is composed of key stakeholders in the nail salon industry, including individual manicurists, environmental organizations, researchers, reproductive justice groups, and government agencies. CHNSC created a “healthy nail salon” certification as an incentive for owners to …

Adventures In Nannydom: Reclaiming Collective Action For The Public's Health, Lindsay Wiley, Wendy E. Parmet, Peter D. Jacobson

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This article presents a summary of recent collaborative efforts to understand and respond to nanny state rhetoric. Instead of summarily rejecting the libertarian critique of paternalism, public health advocates must develop a forceful response that exposes its weak legal basis and reframes the debate in terms of democratic collective action.