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Volume 58, Issue 4


Separation of Powers and the Criminal Law

by  Rachel E. Barkow

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including criminal…


Outside Director Liability

by  Bernard Black, Brian Cheffins & Michael Klausner

This Article analyzes the degree to which outside directors of public companies are exposed to out-of-pocket liability risk--the risk of paying legal expenses or damages pursuant to a judgment or settlement agreement that are not fully paid by the company or another source, or covered by directors' and officers' (D&O) liability insurance. Recent settlements in…


What the Right of Publicity Can Learn from Trademark Law

by  Stacey L. Dogan & Mark A. Lemley

The right of publicity gives people the right to control the use of their names and likenesses for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right--what it means to use a name or likeness "commercially," and what aspects of a person's "likeness" are protected against appropriation. In…


Realizing Two-Tiered Innovation Policy Through Drug Regulation

by  William E. Ridgway

Patent law and drug regulation traditionally function within distinct, and largely adversarial, domains. That is, patent law's aim to encourage invention counteracts the costs and uncertainty associated with drug regulation's efforts to ensure the safety and efficacy of drugs. But this traditional view needs revision. In fact, their domains are merging, and their relationship is…


Defining the Boundaries of “Personal Injury”

Rainer v. Union Carbide Corp.
by  Maya Sen

For over fifty years, workers at the Paducah Gaseous Diffusion Plant (PGDP) in western Kentucky were exposed to dangerous amounts of toxic radiation—largely without their knowledge. Since the news of the exposure exploded onto the national press in the late 1990s, over six thousand compensation claims have been filed with the Department of Labor, and…