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Articles 196921 - 196950 of 544830

Full-Text Articles in Law

Constitutional Spaces, Allan Erbsen Jan 2011

Constitutional Spaces, Allan Erbsen

Articles

This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers …

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Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser Jan 2011

Scientific Integrity: The Perils And Promise Of White House Administration, Heidi Kitrosser

Articles

This Article was written for a Fordham Law Review symposium on “Presidential Influence over Administrative Action, Recent Developments.” The Article explores developments in scientific integrity in the first two years of the Obama Administration. Specifically, it looks at the impact of “presidential administration” - that is, of top-down White House directives to administrative agencies - on scientific integrity. I define processes embodying scientific integrity as those designed to enable expert scientific findings to be presented without extra-scientific interference or distortion. Scientific integrity is a subset of information integrity. A system that facilitates information integrity is one that is relatively transparent …

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Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill Jan 2011

Limits Of Dodd-Frank's Rating Agency Reform, Claire Hill

Articles

The history of rating agency reform has not been inspiring. Until recently, it seemed stuck in an ever-repeating cycle of futility. A crisis would spur calls for reform, hearings would be conducted, the SEC would issue proposals and requests for comments, and ultimately, nothing would happen - until the next crisis, when the cycle would begin again. The Enron debacle, in which the rating agencies rated Enron’s debt investment grade until four days before Enron declared bankruptcy, did spur some action, including federal legislation and SEC regulations. Whatever else may be said about the Enron-spurred action, it failed to prevent …

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Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell Jan 2011

Sanitizing Interested Transactions, Claire Hill, Brett Mcdonnell

Articles

How should corporate law deal with a controlling person's entry into a transaction with the corporation she controls? How should corporate law deal with transactions or decisions where one or more board members are interested? In this Article, we argue that Delaware law could do a better job answering these questions than it presently does. We propose a modest strengthening of judicial review of interested transactions. For transactions where one or more directors have a conflicting interest and defendants attempt to cleanse the transaction using approval by the disinterested directors, we propose that the defendants show that the approving disinterested …

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Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell Jan 2011

Of Mises And Min(Sky): Libertarian And Liberal Responses To Financial Crises Past And Present, Brett Mcdonnell

Articles

This article compares two approaches to understanding and preventing financial crises, Austrian and Keynesian business cycle theory. The two are traditionally, and rightly, seen as having diametrically opposed prescriptions, with the Austrian approach opposing governmental intervention and blaming central bank policy for most crises, while the Keynesian approach advocates active governmental intervention to both prevent crises and to end them when they do occur. The article argues that both approaches nonetheless have much in common. Each emphasizes the importance of radical uncertainty in financial markets and analyzes business cycles as tied to credit cycles that turn on shifting investor expectations. …

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An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter Jan 2011

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Articles

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers, and commentators, culminating most recently in the Federal Circuit’s decision to revise certain aspects of the doctrine in its en banc decision in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information …

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Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter Jan 2011

Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter

Articles

When a patent infringement defendant succeeds in proving that the patent owner has misused its patent, the patent is rendered unenforceable unless and until the misuse is purged. Case law has never clearly articulated precise criteria for determining the boundaries of the misuse doctrine, however. Although the misuse doctrine overlaps to some extent with substantive antitrust law, for example, under current law not every instance of misuse is necessarily an antitrust violation, and not every patent-related antitrust violation necessarily constitutes misuse. In this paper, I identify four possible justifications for the patent misuse doctrine that, in theory, could provide guidance …

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Ip Misuse And Innovation Harm, Thomas F. Cotter Jan 2011

Ip Misuse And Innovation Harm, Thomas F. Cotter

Articles

"This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms …

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Don't Panic! Defending Cowardly Interventions During And After A Financial Crisis, Brett Mcdonnell Jan 2011

Don't Panic! Defending Cowardly Interventions During And After A Financial Crisis, Brett Mcdonnell

Articles

How should we regulate the U.S. financial system after the financial crisis, when we face the task with a radically inadequate understanding of what went wrong and what effect proposed regulations will likely have? This paper explores three quite different approaches to regulating in the face of severe uncertainty: the libertarianism of Friedrich Hayek, the conservatism of Michael Oakeshott, and the liberalism of John Maynard Keynes. Each thought deeply about the problem of how uncertainty affects human affairs, but each came to quite different conclusions about how to address such uncertainty. The paper outlines the core, immensely useful insights of …

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Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell Jan 2011

Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell

Articles

Recent developments in Delaware concerning shareholder bylaws and the SEC proposal concerning shareholder proxy access have moved the U.S. closer to a set of optimal rules for shareholder proxy access in nominating director candidates, but not all the way there. These rules must address both the default rule which applies in the absence of agreement within a corporation to the contrary, and the altering rule which specifies who within a corporation may choose to opt out of the default provisions. Applying principles of accountability and freedom of contract, the optimal default rule would allow for certain shareholders to use the …

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Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky Jan 2011

Diagonal Federalism And Climate Change: Implications For The Obama Administration, Hari M. Osofsky

Articles

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government …

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Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter Jan 2011

Four Principles For Calculating Reasonable Royalties In Patent Infringement Litigation, Thomas F. Cotter

Articles

In recent years, juries in some patent infringement suits have awarded prevailing patentees "reasonable royalty" damages in the eight-, nine-, and even ten-figure range. Though not all of these awards have been upheld following postjudgment motions or on appeal, concern over the magnitude and frequency of such awards has led to calls for the reform of various practices relating to the calculation of patent damages. Other voices, not surprisingly, have either defended the current system or, at the very least, expressed reservations over the need for significant changes. Underlying some of these debates are fundamental differences of opinion concerning the …

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Rights, Responsibilities, And Roles: A Comment On Waldron, Brian H. Bix Jan 2011

Rights, Responsibilities, And Roles: A Comment On Waldron, Brian H. Bix

Articles

In his Edward J. Schoen Leading Scholar Lecture, "Dignity, Rights, and Responsibilities," Jeremy Waldron raises important issues regarding the connections between rights and responsibilities and rights and dignity. In this brief comment, I focus on the first set of connections - Waldron’s claim that "some rights actually are responsibilities" - examining in particular, the analytical claim he offers regarding a certain subset of rights. The paper ultimately concludes that Waldron’s argument that there is a type of right that is equivalent to a responsibility remains a provocative but not (yet) fully persuasive idea. Likely examples, like those involving a parent …

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Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell Jan 2011

Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell

Articles

One way to make U.S. corporations more sustainable is to broaden the group of stakeholders whose interests are considered in making decisions. This Essay evaluates a number of possible strategies for creating a role for employees in corporate governance. The strategies include: Using areas other than business association law to enhance the legal rights of individual employees; Encouraging officer or director power, hoping that officers and directors will side with employees and other interests more than shareholders; Encouraging shareholder power, hoping that employees agree with shareholders on the need to keep managers accountable; Supporting unions as a source of countervailing …

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Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix Jan 2011

Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix

Articles

This article is a Comment on Nathan Oman, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization" (45 Wake Forest Law Review 579 (2010)). Oman's article shows that there are real disadvantages in looking at contracts through the lens of narrow transaction types, especially where individual agreements might fit poorly with the assumed narrative of that transaction type. The example Oman uses, mahr agreements treated within the category of premarital agreements, gives partial (but only partial) support for his thesis. The vast majority of those agreements should not be treated as premarital agreements, …

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The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt Jan 2011

The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt

Articles

The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of …

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The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt Jan 2011

The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt

Articles

In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to …

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Toward A Theory Of Extraterritoriality, Mark Gibney Jan 2011

Toward A Theory Of Extraterritoriality, Mark Gibney

Minnesota Law Review Headnotes, Vols. 94-106 (2009-2022)

No abstract provided.

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Comment: Anticompetitive Effect, Daniel R. Shulman Jan 2011

Comment: Anticompetitive Effect, Daniel R. Shulman

Minnesota Law Review Headnotes, Vols. 94-106 (2009-2022)

No abstract provided.

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Justice David Stras, Judicial Politics And Federal Court Nomination Politics, Timothy R. Johnson Jan 2011

Justice David Stras, Judicial Politics And Federal Court Nomination Politics, Timothy R. Johnson

Minnesota Law Review Headnotes, Vols. 94-106 (2009-2022)

No abstract provided.

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Developing Countries And Gatt/Wto Rules: Dynamic Transformations In Trade Policy Behavior And Performance, Chiedu Osakwe Jan 2011

Developing Countries And Gatt/Wto Rules: Dynamic Transformations In Trade Policy Behavior And Performance, Chiedu Osakwe

Minnesota Journal of International Law, Vols 1-28:1 (1992-2019)

No abstract provided.

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Does Judicial Philosophy Matter?: A Case Study, Francisco J. Benzoni, Christopher S. Dodrill Jan 2011

Does Judicial Philosophy Matter?: A Case Study, Francisco J. Benzoni, Christopher S. Dodrill

West Virginia Law Review

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge's political ideology can be used to predict how a judge will decide certain cases; other factors, such as the judge's judicial philosophy, tend to be unimportant. Under this theory, two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with pre­dicted ideological outcomes. This manuscript tests the attitudinal model by examin­ing opinions by two judges with very similar political ideologies but different judicial philosophies: Judge Michael Luttig and Judge Harvie Wilkinson …

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The Tipping Point: Prison Overcrowding Nationally, In West Virginia, And Recommendations For Reform, Karina Kendrick Jan 2011

The Tipping Point: Prison Overcrowding Nationally, In West Virginia, And Recommendations For Reform, Karina Kendrick

West Virginia Law Review

No abstract provided.

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Neighbor-On-Neighbor Harassment: Does The Fair Housing Act Make A Federal Case Out Of It ?, Robert G. Schwemm Jan 2011

Neighbor-On-Neighbor Harassment: Does The Fair Housing Act Make A Federal Case Out Of It ?, Robert G. Schwemm

Case Western Reserve Law Review

No abstract provided.

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State Secrets Are A Privilege, Not A Right: Can Foreign Victims Of Extraordinary Rendition And Torture Overcome The State Secrets Privilege Using The Alien Tort Statute, Andrew Kingman Jan 2011

State Secrets Are A Privilege, Not A Right: Can Foreign Victims Of Extraordinary Rendition And Torture Overcome The State Secrets Privilege Using The Alien Tort Statute, Andrew Kingman

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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Civil Procedure - Supreme Court's Vaden Decision Regarding Federal Question Jurisdiction Does Not Apply To Diversity Jurisdiction - Northport Health Services Of Arkansas, Llc V. Rutherford, 605 F.3d 483 (8th Cir. 2010), Joseph D. Picozzi Jan 2011

Civil Procedure - Supreme Court's Vaden Decision Regarding Federal Question Jurisdiction Does Not Apply To Diversity Jurisdiction - Northport Health Services Of Arkansas, Llc V. Rutherford, 605 F.3d 483 (8th Cir. 2010), Joseph D. Picozzi

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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Determining Self-Employment Income For Child Support Purposes: The Massachusetts View Compared With The National View, Jason V. Owens Jan 2011

Determining Self-Employment Income For Child Support Purposes: The Massachusetts View Compared With The National View, Jason V. Owens

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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Constitutional Law - Permitting Blanket Strip-Search Policies For All Arrestees Entering General Jail Population - Florence V. Board Of Chosen Freeholders Of Burlington County, 621 F.3d 296 (3d Cir. 2010), Michael Beler Jan 2011

Constitutional Law - Permitting Blanket Strip-Search Policies For All Arrestees Entering General Jail Population - Florence V. Board Of Chosen Freeholders Of Burlington County, 621 F.3d 296 (3d Cir. 2010), Michael Beler

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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Tort Damages - Medical Provider's Charges And Range Of Payments Accepted For Services Rendered Is Admissible Under Section 79g - Law V. Griffith, 930 N.E.2d 126(Mass. 2010), Matthew Blum Jan 2011

Tort Damages - Medical Provider's Charges And Range Of Payments Accepted For Services Rendered Is Admissible Under Section 79g - Law V. Griffith, 930 N.E.2d 126(Mass. 2010), Matthew Blum

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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Intellectual Property Rights And Exclusive (Subject Matter) Jurisdiction: Between Private And Public International Law, Benedetta Ubertazzi Jan 2011

Intellectual Property Rights And Exclusive (Subject Matter) Jurisdiction: Between Private And Public International Law, Benedetta Ubertazzi

Marquette Intellectual Property Law Review

In the recent past, prestigious courts around the world have refused to adjudicate cases relating to foreign registered or unregistered intellectual property rights (hereinafter: IPRs), where the proceedings concerned an IPR infringement claim or where the defendant in an IPR infringement action or the claimant in a declaratory action to establish that the IPR is not infringed pleaded that the IPR is invalid or void and that there is also no infringement of that right for that reason (so called validity issues incidentally raised). In these cases the refusal to adjudicate the foreign IPRs infringement and validity claims was grounded …

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