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Articles 195631 - 195660 of 545066

Full-Text Articles in Law

Patent Inflation, Jonathan Masur Jan 2011

Patent Inflation, Jonathan Masur

Articles

For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular failings. First, the PTO grants significant numbers of invalid patents, patents that impose substantial costs on innovative firms. And second, over time the Federal Circuit has steadily loosened the rules governing patentability, allowing ever more patents over a greater range of inventions. This Article argues that both of these modern trends may be attributable in whole or in …


Fixing Unfair Contracts, Omri Ben-Shahar Jan 2011

Fixing Unfair Contracts, Omri Ben-Shahar

Articles

Various doctrines of contract and consumer protection law allow courts to strike down unfair contract terms. A large literature has explored the question which terms should be viewed as unfair, but a related question has never been studied systematically-what provision should replace the vacated unfair term? How should a distributively unfair contract be fixed? This Article demonstrates that the law uses three competing criteria for a replacement provision: (1) the most reasonable term; (2) a punitive term, strongly unfavorable to the overreaching party; and (3) the minimally tolerable term, which preserves the original term as much as is tolerable. The …


The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider Jan 2011

The Failure Of Mandated Discourse, Omri Ben-Shahar, Carl E. Schneider

Articles

This Article explores the spectacular prevalence, and failure, of the single most common technique for protecting personal autonomy in modern society: mandated disclosure. The Article has four Parts: (1) a comprehensive summary of the recurring use of mandated disclosures, in many forms and circumstances, in the areas of consumer and borrower protection, patient informed consent, contract formation, and constitutional rights; (2) a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions; (3) an account of the multitude of reasons mandated disclosures fail, focusing on the political dynamics underlying …


Licensing Of Intellectual Property, Omri Ben-Shahar, Richard A. Epstein, Jonathan Masur Jan 2011

Licensing Of Intellectual Property, Omri Ben-Shahar, Richard A. Epstein, Jonathan Masur

Articles

No abstract provided.


Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner Jan 2011

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Articles

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.


Failing Juvenile Courts And What Lawyers And Judges Can Do About It, Emily Buss Jan 2011

Failing Juvenile Courts And What Lawyers And Judges Can Do About It, Emily Buss

Articles

No abstract provided.


Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case Jan 2011

Feminist Fundamentalism As An Individual And Constitutional Commitment, Mary Anne Case

Articles

No abstract provided.


Enforcing Bargains In An Ongoing Marriage, Mary Anne Case Jan 2011

Enforcing Bargains In An Ongoing Marriage, Mary Anne Case

Articles

No abstract provided.


The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey Jan 2011

The Creditors' Bargain And Option-Preservation Priority In Chapter 11, Anthony Casey

Articles

Corporate reorganization under Chapter 11 of the Bankruptcy Code is built on the foundation of the absolute priority rule, which requires that senior creditors be paid in full before any value can be distributed to junior creditors. The standard law and economics understanding is that absolute priority follows inevitably from the "creditors' bargain" model. That model tells us that the optimal system of reorganization must respect nonbankruptcy contract rights while maximizing the expected value of assets in bankruptcy. The conventional wisdom is that absolute priority fits this bill as the singular way of protecting creditors' nonbankruptcy contract rights. But what …


The Constitutional Paradox Of The Durbin Amendment: How Monopolies Are Offered Constitutional Protections Denied To Competitive Firms, Richard A. Epstein Jan 2011

The Constitutional Paradox Of The Durbin Amendment: How Monopolies Are Offered Constitutional Protections Denied To Competitive Firms, Richard A. Epstein

Articles

The Durbin Amendment is the first of the major provisions of the Dodd-Frank Act to have been implemented-but only after it withstood a constitutional challenge on the basis of the Takings Clause in the U.S. Court of Appeals for the Eighth Circuit. Now that the Amendment has taken effect, this Article addresses the false economic logic that led to its passage and the dubious arguments used to sustain its constitutionality. On the first issue, the supporters of the Durbin Amendment denounced the highly effective debit card system as a form of cartelization of the industry, which yields excessive returns to …


Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein Jan 2011

Of Pleading And Discovery: Reflections On Twombly And Iqbal With Special Reference To Antitrust, Richard A. Epstein

Articles

This Essay explores the evolving influence of Twombly and Iqbal on modern antitrust litigation. The author argues that any proposed statutory repudiation of Twombly and Iqbal is premature. He also develops a model that calls for a periodic reevaluation of the overall strength of a plaintiffs case to see if a final motion dismissing the case or some part thereof is appropriate before discovery runs its course. That approach should be followed in a limited number of big cases. The key to the successful judicial administration of discovery is to require that plaintiffs gather publicly available information in order to …


Citizens United V. Fec: The Constitutional Right That Big Corporations Should Have But Do Not Want, Richard A. Epstein Jan 2011

Citizens United V. Fec: The Constitutional Right That Big Corporations Should Have But Do Not Want, Richard A. Epstein

Articles

No abstract provided.


Branded Versus Generic Competition - A Kind Word For The Branded Drugs, Richard A. Epstein Jan 2011

Branded Versus Generic Competition - A Kind Word For The Branded Drugs, Richard A. Epstein

Articles

No abstract provided.


Book Review (Reviewing Beth A. Simmons, Mobilizing For Human Rights: International Law In Domestic Politics), Adam S. Chilton Jan 2011

Book Review (Reviewing Beth A. Simmons, Mobilizing For Human Rights: International Law In Domestic Politics), Adam S. Chilton

Articles

No abstract provided.


Beware Of Prods And Pleas: A Defense Of The Conventional Views On Tort And Administrative Law In The Context Of Global Warming, Richard A. Epstein Jan 2011

Beware Of Prods And Pleas: A Defense Of The Conventional Views On Tort And Administrative Law In The Context Of Global Warming, Richard A. Epstein

Articles

No abstract provided.


The Protection Of 'Hot News': Putting Balganesh’S 'Enduring Myth' About International New Service V. Associated Press In Perspective, Richard A. Epstein Jan 2011

The Protection Of 'Hot News': Putting Balganesh’S 'Enduring Myth' About International New Service V. Associated Press In Perspective, Richard A. Epstein

Articles

No abstract provided.


The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq Jan 2011

The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq

Articles

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …


Present Bias And Criminal Law, Richard H. Mcadams Jan 2011

Present Bias And Criminal Law, Richard H. Mcadams

Articles

Although "present bias" (or weakness of will, impulsiveness, myopia, or bounded willpower) was flagged as an issue for legal examination by Tom Ulen and Russell Korobkin over a decade ago, the concept has received insufficient attention in the legal field-and most of that attention has focused on its implications for the regulation of credit and savings. But, as demonstrated by this Article, the inconsistency of time preferences has wider implications, especially for criminal law. First, present bias may have significant implications for the general deterrence of crime. Individuals with time-inconsistent preferences may give in to immediate temptations to offend, even …


The Interstate Commerce Act And The Sherman Act: Playing Railroad Tycoon, Randal C. Picker Jan 2011

The Interstate Commerce Act And The Sherman Act: Playing Railroad Tycoon, Randal C. Picker

Articles

No abstract provided.


The Razors-And-Blades Myth(S), Randal C. Picker Jan 2011

The Razors-And-Blades Myth(S), Randal C. Picker

Articles

The razors-and-blades story offers a foundational understanding of a key area of economics and strategy: invest in an installed base by selling the razor handles at low prices or even giving them away, then sell the razor blades at high prices to justify the prior investment. Large chunks of modern technological life-from VCRs and DVD players to video game systems like the Xbox and now e-book readers-seem to operate subject to the same dynamics of razors-and-blades. The actual history of razors-and-blades is much richer than the standard story suggests. At the point that Gillette could most readily have played the …


Climate Regulation And The Limits Of Cost-Benefit Analysis, Jonathan Masur, Eric A. Posner Jan 2011

Climate Regulation And The Limits Of Cost-Benefit Analysis, Jonathan Masur, Eric A. Posner

Articles

Over the past two years U.S. regulatory agencies have issued fourteen regulations that take into account the effect of industrial activities and products on the global climate. The regulatory activity so far has already set precedents on which future regulation will rest. Yet despite the potentially momentous consequences, it has received no comment in the law review literature. This Article examines the record of these agencies and criticizes the methods they have used to calculate the social cost of carbon emissions. We also develop a larger theme about the relationship between cost-benefit analysis and politics. The best case for cost-benefit …


Efficient Breach Of International Law: Optimal Remedies, Legalized Noncompliance, And Related Issues, Eric A. Posner, Alan O. Sykes Jan 2011

Efficient Breach Of International Law: Optimal Remedies, Legalized Noncompliance, And Related Issues, Eric A. Posner, Alan O. Sykes

Articles

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …


Comment On Merrill On The Law Of Waste, Richard A. Posner Jan 2011

Comment On Merrill On The Law Of Waste, Richard A. Posner

Articles

No abstract provided.


Electoral Exceptionalism And The First Amendment: A Road Paved With Good Intentions, Geoffrey R. Stone Jan 2011

Electoral Exceptionalism And The First Amendment: A Road Paved With Good Intentions, Geoffrey R. Stone

Articles

No abstract provided.


Secrecy And Self-Governance, Geoffrey R. Stone Jan 2011

Secrecy And Self-Governance, Geoffrey R. Stone

Articles

No abstract provided.


Do We Have A Living Constitution?, David A. Strauss Jan 2011

Do We Have A Living Constitution?, David A. Strauss

Articles

No abstract provided.


Summary Judgment And The Law Of Unintended Consequences, Diane P. Wood Jan 2011

Summary Judgment And The Law Of Unintended Consequences, Diane P. Wood

Articles

No abstract provided.


Rethinking The Interest-Convergence Thesis, Justin Driver Jan 2011

Rethinking The Interest-Convergence Thesis, Justin Driver

Articles

No abstract provided.


Signing Unconstitutional Laws, William Baude Jan 2011

Signing Unconstitutional Laws, William Baude

Articles

It has become fairly common for Presidents to sign laws that they think are unconstitutional, at least in part. Some scholars argue that this is unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today’s government. Both sides are wrong. In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. Yet the President must exercise this power responsibly. He must have other constitutional duties that justify signing the remainder of the bill into law, and he must be prepared to use his …


The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner Jan 2011

The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner

Articles

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …