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Louis B. Sohn and the Law of the Sea
Get PDFLouis B. Sohn significantly influenced the modern law of the sea, as he did other areas of international law. Though a positivist immersed in the human history and process of developing the law, Louis was also a visionary who saw international law as a noble endeavor that could improve or even transform the world. Part I of this essay describes Louis\u27s various roles and character. Part II briefly sets out his vision and his sense of the interconnectedness between the law of the sea and other areas of international law. Part III analyzes how Louis saw the international lawmaking process, with which he sought to implement his vision
Places of Refuge for Ships
Get PDFThis essay first provides an overview of Places of Refuge for Ships, a book that contains essential information and perspectives for lawyers and policy makers. Part III then briefly explores why the issue of places of refuge is daunting. The reasons for the complexity of this issue set the scene for Part IV, which proposes a process-oriented approach to assess and manage risks where vessels in distress seek access to places of refuge
Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants
Get PDFThis Article examines the extent to which employment discrimination litigation conducted under the current legal framework increases the biases of those involved in this process, particularly defendant-employers. It examines whether discrimination litigation enhances and exacerbates the negative views that these defendants may have toward not just the plaintiff who initiated the litigation, but also toward the broader protected class to which the plaintiff belongs.
Part I of this Article briefly expands upon the different types of bias that can infect employers\u27 decisions, from the blatant discrimination that largely has disappeared from American society, to intentional discrimination that employers strategically hide from public view, to the unconscious biases that affect the decisions of employers and others without them even knowing it.
Part II develops this Article\u27s central argument regarding the existence of litigation-induced group bias, presenting support for the idea that the litigation of discrimination claims exacerbates defendants\u27 biases against the entire protected group to which the plaintiff belongs.
Part II of this Article analyzes the implications of this phenomenon of litigation induced group bias, exploring how (if at all) this should affect the legal framework under which courts analyze retaliation claims under Title VII.
Finally, Part IV explores some alternate approaches to addressing litigation induced group bias, asking whether there are other changes, short of doctrinal changes, that could be made in response to this problem
“A Painful Process of Waiting”: The New York, Washington, New Jersey, and Maryland Dissenting Justices Understand that “Same-Sex Marriage” is Not What Same-Sex Couples Are Seeking
Get PDFThis essay focuses on the recent decisions by the highest courts of four states rejecting the claims of individuals in same-sex relationships that they must be permitted to marry the partner of their choice. In the cases of Hernandez v. Robles, Andersen v. King County, Lewis v. Harris, and Conaway v. Deane, a majority or plurality of each court determined that the bans preventing individuals in same-sex couples from marrying were constitutional. Understanding these cases is particularly important as additional state supreme courts address the cases of similar plaintiffs pending before them
Insuring Corporate Crime
No full textCorporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability - particularly the manner in which it is currently applied by the federal government - creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation\u27s employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover the entity\u27s civil penalties associated with its employees\u27 criminal conduct. Entities that successfully procured insurance would no longer be subject to entity-wide criminal liability. Part I begins with a discussion of corporate criminal liability and the costs that accrue from the manner in which it has been implemented by the Department of Justice. Part II examines several proposals to reform corporate criminal liability and explains why they are inadequate. Part III lays out the proposal for an insurance system in lieu of entity-based criminal liability and explains, in rough form, how corporate entities might contract for insurance, how claims might be filed and how damages might be measured. Part III also addresses a number of arguments that others might raise against the proposal
The Software Licensing Dilemma
Get PDFThis Article makes two arguments. First, the dilemma posed by software transactions-sales or licenses?-should be answered by dynamic contract law. Dynamic contract law has as its objective effectuating the intent of the parties but weighs that objective against policy considerations. Second, the validity of a license grant should not be inextricably tied to the validity of the contract as a whole. The problem with relying on contract doctrine in the context of software licensing is that, too often, the application of that doctrine is static and formalistic. A new doctrine is not necessary to address software licensing issues; rather, the old doctrine needs to be reinvigorated to address changes in the marketplace. A license grant is not solely and exclusively a contractual term, the validity of which depends on the validity of the contract in its entirety; rather, in the event that a software license fails as a contract, the license grant may be considered-separate from the contract as a whole-as a promise made by the licensor that is contingent on the licensee\u27s performance and adherence to its terms.
Part II discusses the implications of the licensing dilemma and the ramifications that flow from a determination of the transaction as either a license or a sale. Part III summarizes existing approaches to the software licensing dilemma and proposes a dynamic contracts approach to examining software transactions. A dynamic contracts approach identifies the nature of the transaction as relevant to determining the intent of the parties. Part III also proposes several criteria for distinguishing a sales transaction from a licensing transaction and acknowledges that most software transactions contain aspects of both. In addition, Part III discusses the effect of written terms that accompany a product in both a licensing and a sales transaction. Because software license agreements are contracts, their validity and enforceability should depend first and foremost on their validity and enforceability as contracts; however, rather than examining the written agreement in order to characterize the transaction, we should look to the transaction to determine how to interpret the written terms. In a sales transaction, the license grant is effective as a promise independent from the other terms contained in the contract. Recognizing the independence of license grant provisions exposes the binary proposition of license versus sale as a false dichotomy.
Part IV examines two common license restrictions and discusses how each should be interpreted using a dynamic contracts approach. Part V discusses and responds to anticipated objections to this approach. This Article concludes that the software licensing dilemma is a red herring. Technology has created challenges for software producers, but those challenges are not unique to the software industry. Before we distort existing legal doctrine in an effort to accommodate the perceived needs of a specific market segment, we should carefully consider the impact of doing so on other market segments. It would be much wiser to take the long view to address technological changes than to create exceptions that morph into rules with regrettable implications
