This Article turns the traditional discussion on its head and shows that intellectual property’s putative costs can actually be benefits. It does so by recognizing that not all innovation is good—that there are certain industries that society may prefer to suppress. If intellectual property reduces production and impedes innovation in those industries, then its protection would be a net gain for society. We examine a handful of such industries (tax planning, biotechnology, fashion, and pornography) and demonstrate that keeping (or bringing) them under the intellectual property umbrella may be the best way to stifle them. In short, we describe the circumstances under which intellectual property’s downside is society’s upside.

The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as where a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a showing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as where the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. This Comment suggests that notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving of compelled disclosures: The risk that coercive discovery techniques, such as subpoenas and search warrants, will chill freedom of expression.

This Comment argues that given the inadequacy of current discovery laws and constitutional criminal procedure standards as a safeguard of free speech interests, the First Amendment should operate as an additional restriction on coercive investigatory powers. It thus makes the case for subjecting coercive discovery requests for information about speech-protected activities to a uniform, heightened discoverability standard. Specifically, it proposes a five-part framework under which courts should analyze whether certain speech-related information can be coercively discovered.

In this Article I explain the MAC clause using a new conceptual tool for drafting and interpreting contracts, the “standard clause analysis.” For any default rule of contract law, practitioners can be expected to develop a “standard clause analog” in order to easily contract around the default. Given this relationship between default rules and their standard clause analogs, if one is given, the other can be deduced. This is the “standard clause analysis,” and it can be used in two ways, which I call “forward” and “reverse.” In a forward standard clause analysis, one begins with a default rule and advances to its standard clause analog. The forward standard clause analysis can be used to predict the existence of standard clause analogs that have yet to be observed. And in a reverse standard clause analysis, one begins with a standard clause and advances to the default rule with which it is associated. The reverse analysis is a powerful method for interpreting contract terms.

After introducing and describing the standard clause analysis, I put it to practical use. I begin by applying the forward analysis to the common law doctrine of frustration, and predict that a “frustration clause” exists, or will soon come into being, and that it would resemble a reverse-Force Majeure clause and be found in relatively high-value contracts. These predictions are then confirmed with several examples of frustration clauses observed in the real world: the Morals clause, the Walkaway clause and, most notably, the MAC clause.

Then I apply the reverse analysis to the MAC clause and show it to be a standard clause analog of the frustration doctrine that alters the default rule by (a) permitting excuse on the basis of a significant (but less than total) loss in contractual value, (b) excusing the acquirer based on frustration of a “secondary” (as opposed to its “primary”) purpose, and (c) shifting major exogenous risks (such as an economic recession or a natural disaster) from the target to the acquirer.

I conclude with a case study to demonstrate the difference between the MAC clause and the default frustration doctrine: Bank of America’s recent $50 billion acquisition of Merrill Lynch in late 2008. During the brief three-month period between signing and closing, Merrill lost an astounding $15 billion, but the conventional wisdom—shared by Federal Reserve Chairman Ben Bernanke, among others—is that Merrill’s loss failed to trigger the MAC clause. I disagree. While the default frustration doctrine would not have offered any relief, Bank of America did indeed have viable grounds to invoke the MAC clause, properly understood, and walk away from the Merrill deal.

The purpose of the Article is to paint a landscape of U.S. lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals, such as whether lawyers who participate are complicit in injustice and the consequences to the client and to society of lawyer resistance to injustice. It demonstrates the dualistic interplay between acts of resistance and complicity: Acts of resistance may be co-opted and perpetuate injustice and acts that appear to be complicit can result in powerful forms of resistance. It analyzes the forms and expressions of resistance, and presents an original schema of the acts of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to the client, and whether lawyers can know when a tribunal is so unjust as to merit resistance. The Article concludes by considering avenues for further research.

The research presented here can be interpreted to support three major claims. First, these data suggest that promissory estoppel is a much more significant theory of promissory recovery than has been previously thought, and seems positioned to continue to grow in importance in the coming decades. Second, the data reveal that promissory estoppel cannot be understood exclusively in terms of “promise” or “reliance,” as some scholars and judges have suggested. Instead, the data reveal that most judges require the existence of both promise and reliance before allowing a promissory estoppel claim to proceed, although surprisingly few judges require a plaintiff to show that the equitable principle of “justice” has been satisfied. Last, and most significantly, these data reveal that, with respect to remedies, courts tend to treat promissory estoppel actions as traditional breach of contract actions, in that courts generally tend to award the (usually) more generous expectation measure of damages, which is typical in ordinary breach of contract actions, over the (usually) less generous reliance measure of damages, which is often awarded where non-contractual obligations have been breached (such as in tort law). However, by replacing these conceptual labels (such as “expectation” and “reliance” damages) with a more functional classificatory scheme capturing whether a promissory estoppel plaintiff has obtained the highest recovery available under any other theory of promissory recovery, including a “traditional” breach of contract action, this Article argues that the extent to which courts have treated promissory estoppel claims as fully contractual has been underappreciated.

In addition, this Comment analyzes a topic that has not yet been addressed by courts or scholarship: whether reaffirming Indian tribal court jurisdiction over non-Indians would recognize inherent tribal authority, rather than delegate federal prosecutorial power. A delegation of federal prosecutorial power would force tribal courts to adopt all of the procedural and doctrinal rules of federal courts. Although the Supreme Court has written that statutorily overruling Oliphant would be considered a federal delegation of authority, this Comment argues that the Supreme Court has incorrectly assessed the nature of tribal sovereignty. Instead, it suggests that Indian tribal court jurisdiction over non-Indians has been a dormant tribal power ever since the tribes were incorporated into the United States, and that this power is merely held in trust by the federal government until such time as tribes are able to assume such jurisdictional responsibility. Therefore, Congress may relax its control over the tribes without delegating federal power. A congressional reaffirmation of tribal court jurisdiction, under inherent tribal sovereignty, would allow tribal courts to
maintain their culturally sensitive procedures while ensuring justice on reservations.

I aim to link the crippled state of the legal profession with the traditional prohibition on external investment in law firms. Cut off from investor capital, law firms are forced to rely on perilous amounts of debt and inefficient business practices in order to simply survive.

Contrary to the conventional justification for prohibiting outside investment, regulating the business structure of law firms is neither necessary nor sufficient to ensure ethical lawyering. Without access to modern capital structures, U.S. law firms are handicapped in building transnational legal presences and remain trapped in a failing business model. I propose a system in which law firms can access an outside pool of capital as publicly traded partnerships, while adopting more formal ethical structures that protect professional standards and prevent possible conflicts of interest.

The U.S. legal profession should take advantage of an ongoing paradigm shift to emerge from the crisis with liberalized business structures that allow firms to build sustainable, competitive practices that deliver more efficient services to their clients. I hope my discussion of these issues adds a new perspective to the debate concerning outside investment in U.S. law firms, and strikes a balance between ethical considerations and the evolving market for legal services.

Conceding that the language of Roe presents a virtually insurmountable obstacle to fetal 1983 actions, this Comment argues that neither the facts nor the reasoning of Roe logically support a regime that refuses to compensate unborn children for injuries occasioned by state actors. This Comment proceeds to analyze how the prohibition on fetal 1983 claims generates legal inconsistencies and is unsound from a policy perspective. A principled examination of the unavailability of damages to compensate for in utero injuries reveals that the longstanding bar on fetal 1983 claims should be reconsidered.

Recently, in Knight v. Jewett, a plurality of the California Supreme Court held that assumption of risk now operates as an entirely duty-based doctrine. Subsequent California appellate courts opine that Knight replaces the limited duty of the baseball rule with a doctrine in which stadium owners owe fans a mere duty not to increase a sport’s inherent risks. In this Comment, David Horton contends that a close examination of Knight and its underlying principles casts doubt on this conclusion. Even though Knight substitutes a duty-based regime for cases previously resolved under the rubric of assumption of risk, its approach is entirely consistent with the application of the duty-based baseball rule to cases of fan injury. To conclude otherwise treats fans and athletes identically, neglecting both the vast difference between their participatory roles, and modern tort law’s penchant for allocating the burden of injury prevention entirely to business entities instead of to consumers. Yet, the baseball rule itself allows stadium owners to discharge their legal obligations by taking a single, anachronistic safety measure, thus creating little incentive to examine new methods of keeping fans safe.

Horton concludes that stadium owners should instead owe fans a duty of reasonable care. This standard would force stadium owners to link safety measures to the specific manner in which fans are hurt and to update their precautionary measures as sports and technology evolve. In addition, the doctrine of comparative fault would assign liability in accordance with each party’s blameworthiness, thus ameliorating concern that a duty of reasonable care would greatly increase stadium owners’ liability for fan injuries.

One of the defining features of any conquest is the subordination of the conquered. The history of the conquered Mexicans of the Southwest demonstrates this purposeful subordination. Through careful redrafting of the Treaty of Guadalupe Hidalgo, the U.S. Congress reserved to itself discretion over when to admit the conquered territories as states. Congress waited until Mexicans were politically disempowered racial minorities within each territory before admitting the conquered territories as states with political representation. This happened earliest in the cases of Texas (annexed in 1845) and California, and latest in New Mexico, which was denied statehood until 1912.

The minimization of the political power of Mexicans as Mexicans emerges, then, as a prominent theme of the conquest. I believe this theme can be generalized to all Latino peoples subject to U.S. conquest. The minimization of the political power of Latinos continues today, in at least three areas. First, nearly four million U.S. citizens resident in Puerto Rico live without voting rights or political representation in the federal government, yet are subject to federal law, violating democratic theory. Second, the intentional, long-term exploitation of undocumented Latino immigrant labor maximizes agricultural profits while minimizing the potential political power of the immigrants. Lastly, attempts to curtail the use of Spanish through Official English laws and other restrictions symbolize the subordination of Spanish speakers and result in less access and use of the democratic process.

These are some of the “trajectories of conquest.” The study of this history helps explain why Latino political power always seems less significant than population numbers and demographic projections suggest it should be.

Therefore, the U.S.-Mexican border is a “danger line” for unauthorized immigrants. In 2002, the U.S. Border Patrol discovered 323 deceased immigrants. American and Mexican researchers, nongovernment organizations, and journalists have declared that the U.S. government is responsible for these deaths. They have also called this tragedy a human rights violation. In this Article, cultural anthropologist Guillermo Alonso Meneses explores the problem of immigrant deaths and analyzes whether there is evidence of human rights violations in the United States’ border strategy or in the passive Mexican authorities’ attitude. This Article argues that the Mexican and U.S. governments have equal responsibility for the problem of immigrant deaths. Human rights violations exist, but these are isolated events. There is no clear evidence to charge Mexican or U.S. authorities with systematic human rights violations. Nevertheless, we need to stop the deaths of unauthorized immigrants through rapid and humane solutions.