Vol. LIII No. 1

Regulation by Third-Party Verification

Abstract: This Article proposes greater governmental reliance on private auditors to enhance the achievement of regulatory objectives. Regulatory failure is a growing problem as governmental agencies lack resources to adequately monitor and detect noncompliance. Third-party verification partially privatizes the regulatory function by requiring regulated entities to hire independent third parties to verify compliance data and […]

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An Empirical Analysis of Fair Use Decisions Under the Uniform Domain-Name Dispute-Resolution Policy

Abstract: Since its inception in 1999, the World Intellectual Property Organization (WIPO) has resolved nearly 22,000 domain-name disputes under the Uniform Domain-Name Dispute-Resolution Policy (UDRP)—a mandatory arbitration policy implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). The UDRP allows the holder of a legally protectable trademark to initiate proceedings to cancel a […]

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The Transformation of American Energy Markets and the Problem of Market Power

Abstract: Traditionally, American energy markets have been regulated using a combination of antitrust law and public utility law: the former has predominated in oil markets and the latter in markets for natural gas and electricity. Over time, energy markets have grown increasingly complex and competitive, due partly to changing market conditions (for example, in oil […]

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An Economic Perspective on Preemption

Abstract: This Essay has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to […]

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All Your Base Are Belong to Us: Towards an Appropriate Usage and Definition of the “Entire Market Value” Rule in Reasonable Royalties Calculations

Abstract: Heated scholarly debate has accompanied the importation of the “entire market value” rule into reasonable royalties awards. The rule’s natural ambit lies within lost profits calculations; indeed, the very definition of the entire market value rule is unclear within the reasonable royalties context. Yet the Federal Circuit has applied, or claimed to have applied, […]

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Moving Away from Certainty: Using Mediation to Avoid Unpredictable Outcomes in Relocation Disputes Involving Joint Physical Custody

Abstract: This Note describes the frameworks used by the courts of various states to modify joint physical custody plans when one parent wishes to relocate with the child to a different jurisdiction. The standards currently used by all states (variants of the “best interests of the child” standard) are too unpredictable, unfairly punish one parent […]

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Forecasting Disruption, Forfeiting Speech: Restrictions on Student Speech in Extracurricular Activities

Abstract: The First Amendment speech rights of public school students engaged in extracurricular activities occupy a doctrinal no-man’s land between individual expression and a government-controlled curriculum. Applying Supreme Court precedent, courts tend to characterize extracurricular student speech as either individual speech under Tinker v. Des Moines Independent School District or “school-sponsored” speech under Hazelwood School […]

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Quality, Not Quantity: The Implications of Redefining Insurance Neutrality in In re Global Industrial Technologies, Inc.

Abstract: On May 4, 2011, in In re Global Industrial Technologies, Inc., the U.S. Court of Appeals for the Third Circuit held that non-creditor insurance companies had standing to challenge a debtor’s Chapter 11 plan of reorganization. In so holding, the court redefined the concept of insurance neutrality. Whereas typically the court examines the text […]

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In Search of Limiting Principles: The Eleventh Circuit Invalidates the Individual Mandate in Florida v. U.S. Department of Health and Human Services

Abstract: On August 12, 2011, the U.S. Court of Appeals for the Eleventh Circuit held in Florida v. U.S. Department of Health & Human Services that Congress exceeded its power under the Commerce Clause and Necessary and Proper Clause by requiring individuals to purchase health insurance as part of the Patient Protection and Affordable Care […]

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