Faculty Books & Edited Works

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Understanding Social Action, Promoting Human Rights

Ryan Goodman, Derek Jinks, and Andrew K. Woods

In Understanding Social Action, Promoting Human Rights, editors Ryan Goodman, Derek Jinks, and Andrew K. Woods bring together a stellar group of contributors from across the social sciences to apply a broad yet conceptually unified array of advanced social science research concepts to the study of human rights and human rights law. The book focuses on three key methodological and substantive areas: actors and their biases; groups and group dynamics, via political economy and social network analysis; and communication, covering health communications, media studies, and social norms research. Their goal is to provide a richer and more integrated approach to the study and practice of human rights, which necessarily requires a more comprehensive and practical theory of social action. Over the last 20 years, the social scientific understanding of human behavior has taken a significant leap forward. Important advances in several fields have increased the complexity and accuracy of prevailing models of individual actors, group dynamics, and communication. Yet too few of the key insights of that scholarship have been incorporated into the theory or practice of human rights promotion. With this book, legal scholars Ryan Goodman, Derek Jinks, and Andrew K. Woods begin the process of incorporation, by collecting research from a broad set of disciplines and underscoring its implications for human rights scholarship and practice. By focusing on nonlegal, empirical scholarship that touches on norm creation, diffusion, and institutionalization, the book presents a broad range of interdisciplinary insights relevant to human rights scholars and practitioners. The volume introduces work from multiple disciplines including economics (Herb Gintis), communications (Robert C. Hornik), social psychology (Jonathan Baron; Deborah Prentice; Paul Slovic and David Zionts), moral biology (John Mikhail), political science (Margaret Levi, Tom R. Tyler, and Audrey Sacks), social network analysis (David Lazer), and negotiation theory (Lee Ross, Byron Bland, and Brenna Powell).
On Sacrifice

Moshe Halbertal

The idea and practice of sacrifice play a profound role in religion, ethics, and politics. In this brief book, philosopher Moshe Halbertal explores the meaning and implications of sacrifice, developing a theory of sacrifice as an offering and examining the relationship between sacrifice, ritual, violence, and love. On Sacrifice also looks at the place of self-sacrifice within ethical life and at the complex role of sacrifice as both a noble and destructive political ideal. In the religious domain, Halbertal argues, sacrifice is an offering, a gift given in the context of a hierarchical relationship. As such it is vulnerable to rejection, a trauma at the root of both ritual and violence. An offering is also an ambiguous gesture torn between a genuine expression of gratitude and love and an instrument of exchange, a tension that haunts the practice of sacrifice. In the moral and political domains, sacrifice is tied to the idea of self-transcendence, in which an individual sacrifices his or her self-interest for the sake of higher values and commitments. While self-sacrifice has great potential moral value, it can also be used to justify the most brutal acts. Halbertal attempts to unravel the relationship between self-sacrifice and violence, arguing that misguided self-sacrifice is far more problematic than exaggerated self-love. In his exploration of the positive and negative dimensions of self-sacrifice, Halbertal also addresses the role of past sacrifice in obligating future generations and in creating a bond for political associations, and considers the function of the modern state as a sacrificial community.
Civil Procedure

Samuel Issacharoff

This book analyzes legal procedure as part of a complicated interaction between private ordering and public intervention. Modern society brings people together in a variety of settings and injects an active state presence into everyday activities. Inevitably there are disputes and they are settled based on social norms or on an understanding of what is right and what is wrong; what is contestable and what is not. This private ordering of responsibility occurs against a backdrop of what might occur were the matter to be taken to the more costly system of public dispute resolution. In this sense, disputants outside the legal system are said to be bargaining in the shadow of the law.
The Law of Democracy: Legal Structure of the Political Process

Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes

This text provides a systematic description of the legal construction of American democracy. Many of the revisions to this edition concern making note material more concise and reducing coverage of issues that have become less important as the frontiers of the field moved in new directions. This fourth edition covers the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.
Criminal Law and Its Processes: Cases and Materials

Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker, and Rachel E. Barkow

Highly respected authorship defines Criminal Law and Its Processes: Cases and Materials. Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker, and new co-author Rachel E. Barkow are nationally recognized scholars. Their cohesive intellectual framework views the law as an instrument of social control, providing an analytical tool with which students can interpret and understand doctrine. Criminal Law and Its Processes: Cases and Materials focuses on developing an understanding of principles and rules applicable to all crimes, rather than the detailed and disjointed elements of any particular crime. Cases-and-notes pedagogy, with excerpted materials, questions, and problems, illuminate the material. Problems enhance students' understanding of the basic principles by testing their applications and interactions in the context of particular offenses. The Ninth Edition preserves the continuity with its predecessors and makes little fundamental change in organization or coverage, retaining nearly all the principal teaching cases, with recent cases and illustrations added. The text has been carefully edited throughout to enhance the transparency of the organization and accessibility of the notes and questions. Text has been added that guides students--before and after main cases--to understand what those cases are designed to illustrate. Overall, the book features increased clarity and ease of teaching while preserving the book's challenging and sophisticated content. A completely reorganized and revised chapter on group crime includes more student-friendly treatment of accomplice liability and conspiracy that will facilitate the mastery of basic doctrine while emphasizing important policy questions. A new section on punishing corporations for criminal conduct includes an analysis of deferred prosecution and non-prosecution agreements. The updated theft chapter explores the important modern crimes of honest services fraud and identity theft. New problems also test students' understanding of traditional theft offenses as applied to modern technology and intellectual property. The chapter on rape has been dramatically revised with current examples of debates over force and consent as well as new notes on male rape victims and human trafficking. Revised coverage of the death penalty provides a balanced treatment of the issue, incorporates the latest empirical research, and offers new notes on the potential causes of racial discrimination. An updated chapter on homicide includes a completely new section on felony murder. Also revised is the treatment of proportionality; it includes recent Supreme Court case law under the Eighth Amendment and challenges to life without the possibility of parole sentences. The question of what to punish is now explored through the lens of teenage bullying. Finally, new sentencing materials have been introduced, including a case study of Bernie Madoff's sentencing.
Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell

Arthur R. Miller and Michael H. Davis

Miller and Davis’ Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell presents the fundamentals of trademark and copyright laws. Authors Michael Davis and famed Harvard professor Arthur Miller provide authoritative coverage on the foundations of patent protection, patentability, and the patenting process. The text addresses: Torts and property Antitrust and government regulation Concept of federalism State and federal conflicts.
Mind and Cosmos: Why the Materialist Neo-Darwinian Conception of Nature Is Almost Certainly False

Thomas Nagel

The modern materialist approach to life has conspicuously failed to explain such central mind-related features of our world as consciousness, intentionality, meaning, and value. This failure to account for something so integral to nature as mind, argues philosopher Thomas Nagel, is a major problem, threatening to unravel the entire naturalistic world picture, extending to biology, evolutionary theory, and cosmology. Since minds are features of biological systems that have developed through evolution, the standard materialist version of evolutionary biology is fundamentally incomplete. And the cosmological history that led to the origin of life and the coming into existence of the conditions for evolution cannot be a merely materialist history, either. An adequate conception of nature would have to explain the appearance in the universe of materially irreducible conscious minds, as such. Nagel's skepticism is not based on religious belief or on a belief in any definite alternative. In Mind and Cosmos, he does suggest that if the materialist account is wrong, then principles of a different kind may also be at work in the history of nature, principles of the growth of order that are in their logical form teleological rather than mechanistic. In spite of the great achievements of the physical sciences, reductive materialism is a world view ripe for displacement. Nagel shows that to recognize its limits is the first step in looking for alternatives, or at least in being open to their possibility.
The Common Law in Colonial America

William E. Nelson

William E. Nelson's first volume of the four-volume The Common Law of Colonial America (2008) established a new benchmark for study of colonial era legal history. Drawing from both a rich archival base and existing scholarship on the topic, the first volume demonstrated how the legal systems of Britain's thirteen North American colonies-each of which had unique economies, political structures, and religious institutions -slowly converged into a common law order that differed substantially from English common law. The first volume focused on how the legal systems of the Chesapeake colonies--Virginia and Maryland--contrasted with those of the New England colonies and traced these dissimilarities from the initial settlement of America until approximately 1660. In this new volume, Nelson brings the discussion forward, covering the years from 1660, which saw the Restoration of the British monarchy, to 1730. In particular, he analyzes the impact that an increasingly powerful British government had on the evolution of the common law in the New World. As the reach of the Crown extended, Britain imposed far more restrictions than before on the new colonies it had chartered in the Carolinas and the middle Atlantic region. The government's intent was to ensure that colonies' laws would align more tightly with British law. Nelson examines how the newfound coherence in British colonial policy led these new colonies to develop common law systems that corresponded more closely with one another, eliminating much of the variation that socio-economic differences had created in the earliest colonies. As this volume reveals, these trends in governance ultimately resulted in a tension between top-down pressures from Britain for a more uniform system of laws and bottom-up pressures from colonists to develop their own common law norms and preserve their own distinctive societies. Authoritative and deeply researched, the volumes in The Common Law of Colonial America will become the foundational resource for anyone interested the history of American law before the Revolution. Professor Nelson: provides authoritative account of common law in colonial America; synthesizes archival sources and current scholarship to create cohesive historical narrative.
The Knockoff Economy: How Imitation Sparks Innovation

Kal Raustiala and Christopher J. Sprigman

From the shopping mall to the corner bistro, knockoffs are everywhere in today's marketplace. Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation--and economic success. But are copyrights and patents always necessary? In The Knockoff Economy, Kal Raustiala and Christopher Sprigman provocatively argue that creativity can not only survive in the face of copying, but can thrive. The Knockoff Economy approaches the question of incentives and innovation in a wholly new way--by exploring creative fields where copying is generally legal, such as fashion, food, and even professional football. By uncovering these important but rarely studied industries, Raustiala and Sprigman reveal a nuanced and fascinating relationship between imitation and innovation. In some creative fields, copying is kept in check through informal industry norms enforced by private sanctions. In others, the freedom to copy actually promotes creativity. High fashion gave rise to the very term "knockoff," yet the freedom to imitate great designs only makes the fashion cycle run faster--and forces the fashion industry to be even more creative. Raustiala and Sprigman carry their analysis from food to font design to football plays to finance, examining how and why each of these vibrant industries remains innovative even when imitation is common. There is an important thread that ties all these instances together--successful creative industries can evolve to the point where they become inoculated against--and even profit from--a world of free and easy copying. And there are important lessons here for copyright-focused industries, like music and film, that have struggled as digital technologies have made copying increasingly widespread and difficult to stop. Raustiala and Sprigman's arguments have been making headlines in The New Yorker, the New York Times, the Financial Times, the Boston Globe, Le Monde, and at the Freakonomics blog, where they are regular contributors. By looking where few had looked before--at markets that fall outside normal IP law--The Knockoff Economy opens up fascinating creative worlds. And it demonstrates that not only is a great deal of innovation possible without intellectual property, but that intellectual property's absence is sometimes better for innovation.
Environmental Law and Policy: Problems, Cases, and Readings

Richard L. Revesz

This casebook emphasizes environmental policy and the structure and details of the federal environmental statutes. It focuses students’ attention on how tradeoffs between environmental goals and social goals are resolved in different and difficult contexts. The book pays close attention to the political context in which regulation takes place, looking at the impact of our federal government, interest groups and the role of administrative agencies in the regulatory process. It focuses on current efforts to address climate change and regulate greenhouse gases through existing statutory frameworks. The casebook has substantial introductions and extensive notes and questions to guide classroom discussion.
Law and the American Health Care System

Sara Rosenbaum, David M. Frankford, Sylvia A. Law, and Rand E. Rosenblatt

This book examines the impact of law on the American healthcare system. It covers: access to, and nondiscrimination in, the provision of healthcare; the regulation of healthcare insurance, financing, and quality; the business of healthcare under antitrust, tax, and fraud and abuse laws. The book strives to link extensive legal discussion to the broader policy and social context that ultimately shapes healthcare in America. With discussion of the Patient Protection and Affordable Care Act throughout, the book has been designed to serve both law schools and health and public policy programs.
More Essential Than Ever: The Fourth Amendment in the Twenty-First Century

Stephen J. Schulhofer

When the states ratified the Bill of Rights in the eighteenth century, the Fourth Amendment seemed straightforward. It requires that government respect the right of citizens to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Of course, “papers and effects” are now digital and thus more vulnerable to government spying. But the biggest threat may be our own weakening resolve to preserve our privacy. In this potent new volume in Oxford's Inalienable Rights series, legal expert Stephen J. Schulhofer argues that the Fourth Amendment remains, as the title says, more essential than ever. From data-mining to airport body scans, drug testing and aggressive police patrolling on the streets, privacy is under assault as never before--and we're simply getting used to it. But the trend is threatening the pillars of democracy itself, Schulhofer maintains. “Government surveillance may not worry the average citizen who reads best-selling books, practices a widely accepted religion, and adheres to middle-of-the-road political views,” he writes. But surveillance weighs on minorities, dissenters, and unorthodox thinkers, “chilling their freedom to read what they choose, to say what they think, and to associate with others who are like-minded.” All of us are affected, he adds. “When unrestricted search and surveillance powers chill speech and religion, inhibit gossip and dampen creativity, they undermine politics and impoverish social life for everyone.” Schulhofer offers a rich account of the history and nuances of Fourth Amendment protections, as he examines such issues as street stops, racial profiling, electronic surveillance, data aggregation, and the demands of national security. The Fourth Amendment, he reminds us, explicitly authorizes invasions of privacy--but it requires justification and accountability, requirements that reconcile public safety with liberty. Combining a detailed knowledge of specific cases with a deep grasp of Constitutional law, More Essential than Ever offers a sophisticated and thoughtful perspective on this important debate.
"Partly Laws Common to All Mankind": Foreign Law in American Courts

Jeremy Waldron

Should judges in United States courts be permitted to cite foreign laws in their rulings? In this book Jeremy Waldron explores some ideas in jurisprudence and legal theory that could underlie the Supreme Court’s occasional recourse to foreign law, especially in constitutional cases. He argues that every society is governed not only by its own laws but partly also by laws common to all mankind (ius gentium). But he takes the unique step of arguing that this common law is not natural law but a grounded consensus among all nations. The idea of such a consensus will become increasingly important in jurisprudence and public affairs as the world becomes more globalized.
The Harm in Hate Speech

Jeremy Waldron

Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities. Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home. Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.
The Rule of Law and the Measure of Property

Jeremy Waldron

When property rights and environmental legislation clash, what side should the Rule of Law weigh in on? It is from this point that Jeremy Waldron explores the Rule of Law both from an historical perspective - considering the property theory of John Locke - and from the perspective of modern legal controversies. This critical and direct account of the relation between the Rule of Law and the protection of private property criticizes the view - associated with the 'World Bank model' of investor expectations - that a society which fails to protect property rights against legislative restriction is failing to support the Rule of Law. In this book, developed from the 2011 Hamlyn Lectures, Waldron rejects the idea that the Rule of Law privileges property rights over other forms of law and argues instead that the Rule of Law should endorse and applaud the use of legislation to achieve valid social objectives.
Dignity, Rank, and Rights

Jeremy Waldron, Wai Chee Dimock, Don Herzog, Michael Rosen, and Meir Dan-Cohen

Writers on human dignity roughly divide between those who stress the social origins of this concept and its role in marking rank and hierarchy, and those who follow Kant in grounding dignity in an abstract and idealized philosophical conception of human beings. In these lectures, Jeremy Waldron contrives to combine attractive features of both strands. In the first lecture, Waldron presents a conception of dignity that preserves its ancient association with rank and station, thus allowing him to tap rich historical resources while avoiding what many perceive as the excessive abstraction and dubious metaphysics of the Kantian strand. At the same time he argues for a conception of human dignity that amounts to a generalization of high status across all human beings, and so attains the appealing universality of the Kantian position. The second lecture focuses particularly on the importance of dignity - understood in this way - as a status defining persons' relation to law: their presentation as persons capable of self-applying the law, capable of presenting and arguing a point of view, and capable of responding to law's demands without brute coercion. Together the two lectures illuminate the relation between dignity conceived as the ground of rights and dignity conceived as the content of rights; they also illuminate important ideas about dignity as noble bearing and dignity as the subject of a right against degrading treatment; and they help us understand the sense in which dignity is better conceived as a status than as a kind of value.
Federal Tax Practice and Procedure: Cases, Materials, and Problems

Camilla E. Watson and Brookes D. Billman

A Federal Tax Practice and Procedure course should be a basic component of any tax curriculum. The issues it presents pertain mostly to compliance (e.g., filing returns, paying the tax, collections) and the problems arising from compliance (e.g., overpayments, tax controversies and litigation) or noncompliance (e.g., penalties and criminal prosecution). Federal tax practice and procedure is divided into two general components: civil and criminal. This casebook introduces students to both components and is designed to be used in a variety of two or three credit hour courses or seminars at both the J.D. and LL.M. levels. These include courses in civil tax practice and procedure, ethics of tax practice, tax litigation, and tax crimes. The casebook contains questions and problems throughout to test students’ comprehension of the material and to provoke further thought about the issues presented. While a limited background in substantive federal tax is useful, it is not required. Therefore, students may take these courses without first taking Federal Income Taxation. It is recommended (although not required) that students take Criminal Law or Criminal Procedure prior to taking Tax Crimes. This second edition is updated through September 2011. Between the first and second editions, there have been numerous cases and tax legislation that made significant changes to the practice and procedure area. We took the liberty in this new edition to change the structure of the first chapter to make it shorter and more of a basic introductory chapter. Some of the material in the original version of Chapter 1 relating to the United States Tax Court has been moved to Chapter 8 in which the subject of litigation in that court is fully considered. Otherwise, the organization of this edition follows the basic organization of the first edition. In some chapters, however, new material has been added and some old material may have been deleted. As on example, Chapter 7 now contains a new section focusing upon Collection Due Process. This reflects the large volume of cases, primarily in the United States Tax Court, in which taxpayers have exercised their rights to have their collection issues reviewed first by the Internal Revenue Service and then by a court of law. We have edited most of the cases and other materials in an attempt to keep the book at a manageable length. Deleted material has been marked with asterisks (* * *), although footnotes, citations, and dissenting opinions may have been deleted without indication. Footnotes retain their numbering from the original sources.
The Public International Law Regime Governing International Investment

José E. Alvarez

This monograph considers the ramifications of the legal regime that governs transborder capital flows. This regime consists principally of a network of some 3,000 investment treaties, as well as a growing body of arbitral decisions. Professor Alvarez contends that the contemporary international investment regime should no longer be described as a species of territorial “empire” imposed by rich capital exporters on capital importers. He examines the evolution of investment treaties and investor-State jurisprudence constante and identifies the connections between these and general trends within public international law, including the increased resort to treaties (“treatification”), growing risks to the law’s consistency (“fragmentation”), and the proliferation of forms of international adjudication (“judicialization”). Professor Alvarez also considers whether the regime’s efforts to “balance” the needs of non-State investors and sovereigns ought to be characterized as “global administrative law," as a form of constitutionalization,” or as an increasingly human-rights-centred enterprise.
The Evolving International Investment Regime: Expectations, Realities, Options

José E. Alvarez, Karl P. Sauvant, Kamil Gerard Ahmed, and Gabriela P. Vizcaino

With the growth of the global economy over the past two decades, foreign direct investment (FDI) laws, at both the national and international levels, have undergone rapid development in order to strengthen the protection standards for foreign investors. In terms of international investment law, a network of international investment agreements has arisen as a way to address FDI growth. FDI backlash, reflective of more restrictive regulation, has also emerged. This book analyzes the existing challenges to the international investment regime, and addresses these challenges going forward. It also examines the dynamics of the international regime, as well as a broader view of the changing global economic reality both in the United States and in other countries. The content for the book is a compendium of chapters by leading thinkers, originating from the International Investment Conference “What's New in International Investment Law and Policy?”.
Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Anthony S. Barkow and Rachel E. Barkow

Who should police corporate misconduct and how should it be policed? In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior. This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren’t subject to the same checks and balances that civil regulatory agencies are. Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the leading lights in the field, including criminal law professors who specialize in the field of corporate criminal liability and criminal law, a top economist at the SEC who studies corporate wrongdoing, and a leading expert on the use of monitors in criminal law. The essays in this volume move beyond criticisms of the practice to closely examine exactly how regulation by prosecutors works. Broadly, the contributors consider who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution. Contributors: Cindy R. Alexander, Jennifer Arlen, Anthony S. Barkow, Rachel E. Barkow, Sara Sun Beale, Samuel W. Buell, Mark A. Cohen, Mariano-Florentino Cuellar, Richard A. Epstein, Brandon L. Garrett, Lisa Kern Griffin, and Vikramaditya Khanna
Trademarks, Unfair Competition, and Business Torts

Barton C. Beebe, Thomas F. Cotter, Mark A. Lemley, Peter S. Menell, and Robert P. Merges

This casebook is the culmination of a substantial effort on the part of its coauthors to create a text that brings together a variety of related bodies of law, many of which until now were only rarely covered in much depth (it at all) in the typical law school curriculum. Our motivation in writing the book therefore was threefold: (1) to expose students to rich new theoretical, analytical, and empirical insights into the law of trademarks, unfair competition, and business torts; (2) to integrate the important (and often overlooked) bodies of state unfair competition law; and (3) to emphasized the growing challenges posed by the Internet and digital technology. Law professors can use this casebook to teach for a variety of two- or three-credit courses within the law school curriculum, including courses primarily devoted to trademark or advertising law; to unfair competition and business torts; or to any combination of these subjects. The casebook makes ample use of problems, many of them derived from real cases. In some instances, to highlight how related legal doctrines can sometimes impact the same set of facts, students are asked to reconsider a problem found in an earlier chapter in light of the material discussed in a later chapter. The following is a synopsis of the casebook contents: Chapter 1. Introduction. In this chapter, we briefly outline the different bodies of law discussed in later chapters. We also present reading and problems designed to introduce students to the various policy rationales for, and critiques of, each of these bodies of law. In particular, we hope that students come away from this chapter with a basic understanding (to be explored at greater depth throughout the course) of the difficulty of distinguishing “fair” from “unfair” competition, and of the tension that sometimes arise between some applications of these bodies of law and the First Amendment. Chapters 2-8. Trademarks. These chapters expand upon and update the coverage of trademark law found in Chapter 5 of Robert P. Merges, Peter S. Menell and Mark A. Lemley, Intellectual Property in the New Technological Age (5th ed. 2009). Chapter 2 briefly surveys the history of trademarks and trademark law and the theoretical bases for trademark protection. Chapters 3 and 4 consider what can qualify for trademark protection and how trademark rights are established. Chapter 4 in particular includes enhanced coverage of genericness, trade dress, and functionality doctrine and of the registration process of the U.S. Patent and Trademark Office. Chapter 5 addresses trademark infringement and provides thorough coverage of the multifactor text for the likelihood of consumer confusion, courts’ application of the new Trademark Dilution Revision Act, and secondary liability in trademark law. Chapter 6 reviews defenses to trademark infringement, such as abandonment and fair use. Chapter 7 briefly considers international aspects of trademark protection, while Chapter 8 covers remedies for trademark infringement. Chapter 9. False Advertising. This chapter provide thorough coverage of the law of false advertising and related doctrines under various common-law and statutory systems. It beings with an overview of the economics of advertising, and then contrasts the common law’s skeptical take on false advertising suits initiated by competitors to the Lanham Act’s (somewhat) more permissive approach. The chapter also includes substantial coverage of a parallel body of false advertising law developed and enforced by the Federal Trade Commission (FTC) and a brief discussion of analogous state laws (the so-called Baby FTC Acts). The chapter continues with a discussion of the related tort of commercial disparagement under the common law and the Lanham Act, and with materials on litigants’ attempts to use the Lanham Act to create a federal right of attribution. The chapter conclude with an extended discussion of possible First Amendment constraints on the law of false advertising and disparagement; a brief survey of international issues; and remedies for false advertising. Chapter 10. Right of Publicity. This chapter presents detailed coverage of state law rights of publicity and related claims for false endorsement. The chapter covers the historical development of the right and differences among the various state law approaches. The chapter also includes extensive discussion of the tension between the right of publicity and the First Amendment, and various courts’ and commentators’ efforts to reconcile the two. Chapter 11. Trade Secrets. Like chapters 2-8, this chapter expands upon coverage of a topic presented in Intellectual Property in the New Technological Age. The chapter provides a comprehensive overview of the law of trade secrets, including both its civil and criminal law aspects, as well as the related body of law on employee covenants not to compete. The chapter includes extensive problems designed to flesh out the meaning of the often ambiguous language of the relevant statutes, and like the two preceding chapters incorporates extensive discussion of related First Amendment issues. Chapter 12. Legal Protection for Facts, Uncopyrightable Factual Compilations, and Ideas. This chapter covers a variety of still-evolving bodies of law, including the once-dormant “hot news” doctrine that now appears, for better or worse, to be making a modest comeback in the Internet age; the enforceability of shrinkwrap and clickwrap agreements; and a top of interest to aspiring screenwriters everywhere, the enforceability of contracts allegedly relating to the confidential submission of ideas. Chapter 13. Cybertrespass. This chapter explores how courts in the digital age have looked o the antique law of personal property to fashion remedies for conduct such as unauthorized access to websites and transfers of domain names. Are these common-law analogies apt when applied to a very different setting from that in which they arose? Chapter 14. Tortious Interference and RICO. This chapter introduces students to two commonly pled business torts (which sometimes arise in connection with other bodies of law discussed elsewhere in the book, as well as independently of those bodies of law). The chapter begins with a discussion of the related torts of tortious interference with prospective business advantage. It concludes with a brief discussion of common-law fraud and of modern-day civil claims arising under the federal RICO statute. Chapter 15. Preemption. Preemption issues pervade many of the topics covered elsewhere in the book. Professors who wish to do so could teach portions of chapter 15 in connection with these other chapters, or they may leave the topic of preemption to separate class periods towards the end of the semester as a way of tying the various materials together. The chapter excerpts the leading U.S. Supreme Court cases on federal preemption of state intellectual property and unfair competition claims, as well as recent appellate court decisions addressing the preemption of hot news, shrinkwrap, and right of publicity claims. The chapter conclude by presenting contrasting views on the preemption of state law claims by other state law, namely the Uniform Trade Secrets Act.
Cases and Materials on European Union Law

George A. Bermann, Roger J. Goebel, William J. Davey, and Eleanor M. Fox

The study of European Union (or EU) law has steadily gained importance in recent years. The EU today consists of twenty-seven Member States with a complex institutional and constitutional structure. This casebook is intended to provide a basic understanding of the European Union and its predecessor, the European Community, including their structures, goals, fields of action, achievements and aspirations, providing a foundation for further research, analysis and legal writing. There are many valid reasons to study European Union law. We present here three of the most important ones. The most pragmatic of them is that the EU has become the largest trading partner of the US, represents a major site of investment for US firms and is the principal site of overseas offices of American law firms. Indeed, its total Gross Domestic Product has recently surpassed that of the US. US law firms and international house counsel cannot afford to possess only a limited knowledge of Union structure, law-making processes and substantive law. European Union competition and trade law have long been staples of international practice. Today the EU’s harmonization of health, safety and technical standards, company, banking and securities law, environmental and consumer protection measures, and legislation in the field of employment law (to name just a sampling of sectors) represent matters of practical concern to American enterprises and their lawyers. The Economic and Monetary Union, with a single currency and a single monetary policy for a majority of the EU States, is also of evident importance to the international business and legal world. Second, European Union law is a rewarding field for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. A rich source of comparative study is also to be found in the EU programs for harmonization of laws. In some fields, as in environmental and consumer rights law, the EU has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, employment law, and anti-discrimination law, the EU has taken quite a different path from the US. Constitutional comparisons and contrasts between the US and EU enrich legal analysis on both sides of the Atlantic. Third, European Union law provides a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes evolving constitutional framework, its institutions, substantive legislations and judicial law, and the constant interplay of policy and politics in an evolving federal-type system, one comprised of twenty-seven nations having many common features, but also quite diverse legal and political systems, demographics and interests. Students who take a basic EU law course for any or all of these reasons will find the casebook of great value. The book covers virtually all major fields of European Union law (except for certain technical fields, such as agriculture, transport, energy and public procurement). The notes and questions are intended to facilitate reflection on how and why the EU institutions, and especially the Court of Justice and Court of First Instance (now renamed the General Court) have reached their legal and policy conclusions. The text and notes make frequent comparisons with US law. The authors hope that students will thereby achieve not only a solid comprehension of European Union law, but also one permitting critical evaluation. The casebook was written primarily for use in US law schools. It is suitable as well for law faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials, notably the Treaty provisions, legislation and court judgments, inviting students to examine these materials critically through focused questions. Accordingly, Court judgments and EU legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgements and legislation through questions will assist in a more reflective comprehension of EU rules and judicial doctrines. The entry into force on Dec. 1, 2009 of the Lisbon Treaty on European Union (TEU) and its accessory Treaty on the Functioning of the European Union (TFEU), which replaces the prior European Community Treaty (ECT), complicates to some extent current study of EU law. The Lisbon TEU’s provisions include many innovations as compared to the prior Maastricht Treaty on European Union, in effect from Nov. 1, 1993. We have tried always to make clear to which TEU we are referring when discussing provisions in the casebook text. Moreover, although many TFEU articles only reiterate provisions of the ECT, some have significantly changed and all have been renumbered. We have customarily indicated the corresponding provisions of both the ECT and TFEU in the casebook text and the excerpted judgments. Over time the Lisbon TEU and TFEU provisions will become familiar, but currently some confusion is inevitable. The Selected Documents, which accompanies the casebook, should prove quite helpful in this regard. It contains the Lisbon TEU, TFEU and the ECT (as most recently amended by the Treaty of Nice, effective Feb. 1, 2003), as well as a conversion table of article numbers between the TFEU and ECT. The Selected Documents also include the Charter of Fundamental Rights of the European Union, given Treaty legal force by the TEU, certain key Protocols, and a considerable number of secondary legislative measures that are important to the understanding of relevant casebook text. The accessibility of these documents should be helpful in research and writing. Clearly there is more material in this casebook than can be responsibly covered in a single semester course. There is a range of possibilities. Teachers who wish especially to emphasize constitutional and institutional issues will find that Parts I and II of the book provide a comprehensive picture of the legal and institutional framework of the European Union, furnished material for at least a full half-semester of teaching, thereby allowing the constitutional and institutional themes to become the course’s leitmotif. They may then assign substantive law chapters that best match their own and their students’ interests. We recommend that nay such substantive law selection include a very healthy dose of the material in Part III on the internal Market, one or two basic chapters on competition policy (from Part IV), and one or two basic chapters on external relations and trade (from Part V) or economic and monetary union and free movement of capital (from Part VI). Other teachers may wish to concentrate in a course or seminar on certain substantive aspects of Union law. Thus a course might concentrate on the common market, or internal market, in Part III, perhaps with the addition of Part VI on free movement of capital and the Economic and Monetary Union, and some chapters from Part VII. Another likely course is one centered on competition law, the topic of Part IV, perhaps joined with coverage of external relations and trade law, the subject of Part V. Any of the assorted substantive law topics in Part VII—environmental protection, consumer rights, social policy, equal employment rights and jurisdiction and judgments—might appropriately be covered either in a basic course or advanced seminar. We hope that the casebook will prove easy to use while also highly instructive, and that it will stimulate further study and scholarship in the ever-widening fields of European Union law.
Administrative Law and Regulatory Policy: Problems, Text, and Cases

Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Adrian Vermeule, and Michael E. Herz

Outstanding authorship, rich materials, and systematic coverage are the hallmarks of Administrative Law and Regulatory Policy, now in its seventh edition. Administrative procedure is examined in light of substantive policy debates in areas such as health, safety, environmental protection, and economic regulation. Questions, notes, and problems support thoughtful reading and analysis of Supreme Court decisions, agency actions, and matters of contemporary debate. A careful and rigorous revision, the Seventh Edition updates content throughout, gives consistent attention to detail, and tightens the presentation. Combining attention to the most recent developments in the field with the rigor and breadth that have always characterized this classic book, the Seventh Edition offers a thorough and timely overview of administrative law. Timeless features of this landmark casebook: logical organization that reveals the interaction of doctrine and procedure, as well as bureaucratic and political factors; Notes and Problems that methodically explore all aspects of regulatory law and policy; historical background material that shows how the New Deal changed American government; in-depth consideration of the justifications for and tools of regulation. New in the Seventh Edition: completely revised materials on presidential appointment and removal; coverage of e-rulemaking, the Obama Administration's transparency and openness initiatives, and other uses of new technologies; material on the Information Quality Act, midnight regulations, and guidance documents; a brief new section on global administrative law; key Supreme Court decisions: Free Enterprise Fund v. PCAOB, Gonzales v. Oregon, Massachusetts v. EPA, FCC v. Fox Television Stations, Inc., Woodford v. Ngo; streamlined Notes and Questions; expanded statutory appendix.
EU Law: Text, Cases, and Materials

Paul Craig and Gráinne de Búrca

The fifth edition of Craig and de Burca EU Law: Text, Cases, and Materials provides clear and insightful analysis of all aspects of European Law in the post Lisbon era. Building on its unrivalled reputation as the definitive EU Text, Cases, and Materials book, this edition looks in detail atthe way in which the Treaty of Lisbon has radically changed both the institutional and substantive law of the European Union.Paul Craig and Grainne de Burca are noted scholars on European Law who have a wealth of experience of both teaching and writing in this subject area. Working closely as an author team for nearly twenty years, they succeed in bringing together a unique mix of illuminating commentary and well-chosenextracts from a wide range of primary and secondary materials.Many of the chapters have been substantially or wholly rewritten, including those on key areas such as Institutions, Legal Instruments and the Hierarchy of Norms, Competences, and Legislation and Decision-Making. All of the chapters have been revised to take account of developments in case law andlegislation, and to make students aware of cutting edge academic debates. There is in addition a new chapter on EU Criminal Law. The new edition therefore gives readers a clear understanding of the changes made by the Lisbon Treaty and the way in which the legal and political landscape hasdeveloped since it came into force. A revised table of contents facilitates navigation through the book.The Online Resource Centre will contain information about the book and sample chapters
The Evolution of EU Law

Paul Craig and Gráinne de Búrca

The European Union has undergone major changes in the last decade, including Treaty reform, and a significant expansion of activity in foreign and security policy, and justice and home affairs. In the first edition of this influential textbook, a team of leading lawyers and political scientists reflected upon the important developments in their chosen area over the time since the EC was formed. This new edition continues this analysis ten years on. Taking into account the social and political background, and without losing sight of the changes that came before, in each chapter the contributors analyze the principle themes and assess the legal and political forces that have shaped its development. Each author addresses a specific topic, event, or theme, from the European Court of Justice to Treaty reform; the enlargement of the EU to administrative law; the effect of EU law on culture to climate change. Together the chapters tell the story of the rapid development of EU law—its past, present, and future.