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From Expert Witnesses to ‘Fleeting Expletives’: The Supreme Court 2008-2009
No full textThe October 2008 Term of the United States Supreme Court began on October 6,2008. By the time the Term adjourned on June 29, 2009, the Court had changed or clarified the law in several important areas. (As we shall see, technically there was another argument in September 2009 as part of this Term.) The Court also seemed to foreshadow larger changes ahead, and saw Justice David Souter announce at the end of April that he would be stepping down from the Court.
This article will review the major decisions of the Court during the Term. It will also analyze the Term and consider the future of the Court with Justice Sonia Sotomayor replacing Justice Souter
Roger J. Traynor Professorship: John E. Noyes
Get PDFIntroduction to inaugural appointment of John E. Noyes to the Roger J. Traynor Professorship
Bargaining Power and Background Law
Get PDFPower in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the background law. The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and the way it alters and affects the allocation of power between contracting parties. In certain circumstances, the background law of copyright has the potential to create or exacerbate two kinds of power imbalance-knowledge power and market power. In this Essay, knowledge power refers to the advantage that a superior understanding of the background law confers upon a contracting party, and market power refers to the ability of a contracting party to establish and dictate business norms in a particular segment of the economy or within a particular industry. This Essay focuses on three bargaining pairs in order to explore how copyright law as background law can create knowledge and market power imbalances: (1) independent artist and hiring party, (2) employee and employer, and (3) software company and consumer. The first two bargaining pairs involve the work-made-for-hire doctrine. The third bargaining pair involves innovative contracting forms and the freedom to contract. Part I examines knowledge power imbalances using as examples the first two bargaining pairs. Part II analyzes market power imbalances using as an example the third bargaining pair
Corporate Social Responsibility: A Multifaceted Tool to Avoid Alien Tort Claims Act Litigation while Simultaneously Building a Better Business Reputation
Get PDFEvaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber
No full textThis is a Response to Adam Kolber\u27s essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.
This Response grapples with the consequentialist implications of Kolber\u27s argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of how people will respond subjectively to the criminal justice system. Moreover, by adjusting sentences at the back-end to reflect subjective experience of punishment, Kolber\u27s regime may forfeit certain front-end benefits that come about (self-regulation, for example) when individuals are particularly fearful of or sensitive to punishment. In sum, it is impossible to evaluate the consequences of Kolber\u27s proposed sentencing regime without also considering how that regime would affect broader law enforcement efforts
