Law Commons^™

Contra Non Valentem In France And Louisiana: Revealing The Parenthood, Breaking A Myth, Benjamin West Janke, François-Xavier Licari

Louisiana Law Review

No abstract provided.

Death Sentencing In East Baton Rouge Parish, 1990-2008, Glenn L. Pierce, Michael L. Radelet

Louisiana Law Review

No abstract provided.

Iqbal "Plausibility" In Pharmaceutical And Medical Device Litigation, William M. Janssen

Louisiana Law Review

No abstract provided.

Catch You On The Flip Side: A Comparative Analysis Of The Default Rules On Withdrawal From A Louisiana Limited Liability Company, Albert O. Saulsbury Iv

Louisiana Law Review

No abstract provided.

From Sunshine To Moonshine: How The Louisiana Legislature Hid The Governor's Records In The Name Of Transparency, Kevin M. Blanchard

Louisiana Law Review

No abstract provided.

The War On Terror In Classrooms And Clinics: An Inventory, Bryant G. Garth, Gowri Ramachandran, Molly Selvin

Journal of Legal Education

No abstract provided.

The Essential And Growing Role Of Legal Education In Achieving Sustainability, John C. Dernbach

Journal of Legal Education

No abstract provided.

Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens—The University Of Chicago Malaria Experiments On Prisoners At Stateville Penitentiary, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

No abstract provided.

Sticky Metaphors And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Elise J. Percy, Joseph L. Hoffman, Steven J. Sherman

University of Michigan Journal of Law Reform

This Article begins with a curious puzzle: Why has the traditional voluntary manslaughter doctrine in criminal law-the so-called "heat of passion" defense to a charge of murder-proven so resistant to change, even in the face of more than a half-century of seemingly compelling empirical and normative arguments in favor of doctrinal reform? What could possibly account for the traditional doctrine's surprising resilience? In this Article, we propose a solution to this puzzle. The Article introduces a new conceptual theory about metaphor-the "sticky metaphor" theory-that highlights an important aspect of metaphorical language and metaphorical thought that has been almost completely overlooked …

The Journalism Ratings Board: An Incentive-Based Approach To Cable News Accountability, Andrew Selbst

University of Michigan Journal of Law Reform

The American establishment media is in crisis. With newsmakers primarily driven by profit, sensationalism and partisanship shape news coverage at the expense of information necessary for effective self-government. Focused on cable news in particular this Note proposes a Journalism Ratings Board to periodically rate news programs based on principles of good journalism. The Board will publish periodic reports and display the news programs' ratings during the programs themselves, similar to parental guidelines for entertainment programs. In a political and legal climate hostile to command-and-control regulation, such an incentive-based approach will help cable news fulfill the democratic function of the press.

The Texas Wind Estate: Wind As A Natural Resource And A Severable Property Interest, Alan J. Alexander

University of Michigan Journal of Law Reform

In 2011, Texas is again at the forefront of an energy boom: the wind energy boom. In 2006, Texas surpassed California and became the US. state with the most installed capacity to produce wind energy, and Texas' level of installed capacity has continued to grow. But the law has not kept pace with this growth. Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed …

Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens—The University Of Chicago Malaria Experiments On Prisoners At Stateville Penitentiary, Bernard E. Harcourt

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Prescription For Fairness: A New Approach To Tort Liability Of Brand-Name And Generic Drug Manufacturers, Allen Rostron

Duke Law Journal

Over the past two decades, courts have consistently ruled that the manufacturer of a brand-name prescription drug cannot be liable for injuries suffered by those taking generic imitations of its product. This meant that a patient injured by a generic drug could have no remedy at all because in many instances the generic drug manufacturer would escape liability on the ground that it did not produce any information on which the patient's doctor relied. It was a perplexing dilemma. The generic drug manufacturer made the product that the plaintiff received, the brand-name manufacturer produced all of the information the patient's …

The Potential Value Of Dynamic Tension In Restructuring Negotiations, Michelle M. Harner, Jamie Marincic

Faculty Scholarship

No abstract provided.

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins Jr.

Scholarly Works

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

Post Padilla: Padilla's Puzzles For Review In State And Federal Courts, Nancy J. King, Gray Proctor

Vanderbilt Law School Faculty Publications

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; …

Is Actual Knowledge Of A Patent Necessary To Actively Induce Its Infringement?, Kali Murray

Faculty Publications

No abstract provided.

Global Civil Procedure Trends In The Twenty-First Century, Scott Dodson

Faculty Publications

Recent scholarship in comparative civil procedure has identified
“American exceptionalism” as a way to describe practices which set the
United States apart from most of the world, particularly the civil law world.
This Article focuses on two areas of “exceptionalism”: pleading standards
and the role of judges. Specifically, pleading requirements are considerably
less strict in the United States compared to other countries. Additionally,
U.S. judges are less active in conducting litigation than their counterparts
elsewhere, especially judges in the civil law tradition. This Article traces
some modern trends toward convergence between the United States and
the rest of the world. …

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

Clarity And Confusion: Rico's Recent Trips To The United States Supreme Court, Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeer and Corrupt Organization Act has bedeviled courts courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must be embody a …

Group Consensus, Individual Consent, Elizabeth Chamblee Burch

Scholarly Works

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make …

A Little Respect, Please, Christina Cerna

Human Rights & Human Welfare

Simon Tisdall suggests that last month, when Mohammed Bouazizi (twenty-six years old), “an unemployed graduate, set himself on fire outside a government building in protest at police harassment,” his act became the “rallying cause for Tunisia’s disaffected legions of unemployed students, impoverished workers, trade unionists, lawyers and human rights activists.” The reaction to his act of self-immolation and death on January 4th led to the flight of President Ben Ali ten days later to Saudi Arabia and to the end of Ali's twenty-three-year rule of Tunisia. Time reported the event as follows: “When Mohamed Bouazizi set himself alight on Dec. …

Abeyance And Spontaneity In Tunisia, Louis Edgar Esparza

Human Rights & Human Welfare

On August 16, 1819, tens of thousands of workers gathered in what is now St. Peter’s Square in Manchester to demand suffrage. Entire families, parishes, and townships assembled, fueled by increasing commodity prices and political disenfranchisement. They had spread the word from town to town, and from church to church, that this previously banned meeting was indeed to occur. It was the culmination of months of agitation on the part of common people to achieve economic and political reform. The government responded violently to the challenge of its authority, as governments so often do, leading to a score of deaths …

Those Pesky Winds Of Change..., Walter Lotze

Human Rights & Human Welfare

When a police officer slapped a fruit seller by the name of Mohammed Bouazizi in the Tunisian town of Sidi Bouzid, nobody could have anticipated that a revolution had commenced. Bouazizi, a twenty-six-year-old computer science graduate unable to find work, had resorted to selling fruit from a street cart in an attempt to support himself and his seven siblings. Slapped by the police officer and ordered to pack up his goods, Bouazizi himself snapped. He marched to the local governor’s office and demanded an appointment, threatening to set himself alight if the governor did not meet with him. In frustration, …

Legal Beagle Blog (February 2011), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

Articles

How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …

The Howey Test Turns 64: Are Courts Grading This Test On A Curve, Miriam R. Albert

Hofstra Law Faculty Scholarship

Sixty-four years ago, the Supreme Court decided SEC v. WJ Howey, crafting a definition for one form of security, known as an investment contract. The Supreme Court's definition of investment contract in Howey is flexible, consistent with the Congressional approach to defining the broader concept of what constitutes a security. This choice of adopting a flexible definition for investment contract is not without cost, and raises the specter of inconsistent interpretation and/or application by the lower courts that threatens to undermine the utility of the Howey test itself as a trigger for investor protection. The intentional breadth and adaptability …

Anatomy Of An Aggregate Settlement: The Triumph Of Temptation Over Ethics, Lester Brickman

Articles

In an aggregate settlement, usually of a mass tort claim, a defendant agrees to pay a specific dollar amount to be divided up by the lawyer among her multiple clients which may number in the hundreds and even thousands. Each client, therefore, is in competition with all of the lawyer’s other clients suing the same defendant for a share of the fixed sum. Rule 1.8(g) of the ABA Rules of Professional Conduct requires that each client give their informed consent to their allocation. To facilitate the settlement and the often quite substantial contingency fees to be earned, lawyers may mislead …

Empiricism And The Rising Incidence Of Coauthorship In Law, Thomas J. Miles, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Chairmanship: The Effective Chair-Ceo Relationship: Insight From The Boardroom, Elise Walton

Ira M. Millstein Center for Global Markets and Corporate Ownership

This paper examines the role of the corporate Chair in the context of one of the most important relationships the Chair has – his or her relationship with the company’sCEO. To approach the topic, the Chairmen’s Forum sponsored a research effort to interview experienced Chairs,CEOs and stakeholders. After the Forum agreed on the project, a research plan was designed and approved by the sponsors. Key interview questions and interview candidates were reviewed and approved. The main areas of the interview included: background experience with the two roles; successful situations and what worked; challenges and what didn’t work; how a relationship …