Because American courts do not traditionally provide for a prevailing party to recover attorneys' fees, the finance of civil lawsuits presents numerous problems for litigants. Insurance and contingent fees solve some of these problems, but in recent decades legislatures have in a number of instances provided for partial fee shifting. Such fee-shifting statutes require courts to set lawyers' fees...
Free Speech and Valuable Speech: Silence, Dante, and the "Marketplace of Ideas"
This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most...
Adjudicative Speech and the First Amendment
While political speech-speech intended to influence political decisions-is afforded the highest protection under the First Amendment, adjudicative speech-speech intended to influence court decisions-is regularly and systematically constrained by rules of evidence, canons of professional ethics, judicial gag orders, and similar devices. Yet court decisions can be as important, both to the...
The Semiotic Analysis of Trademark Law
Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies. Yet the economic analysis has failed to explain, because it is unequipped to do so, a number of concepts of fundamental importance in the law, most notably the concepts of trademark "distinctiveness" and trademark "dilution." This Article...
Noncompete Agreements in California: Should California Courts Uphold Choice of Law Provisions Specifying Another State's Law?
Unlike most states, California generally prohibits noncompete agreements between an employer and its employees through section 16600 of the California Business and Professions Code. In recent years, state and federal courts in California have encountered noncompete agreements that contain choice of law clauses specifying the law of a state that allows reasonable noncompete agreements. When...
The Camel's Nose Is in the Tent: Rules, Theories, and Slippery Slopes
Slippery slopes have been the topic of a spate of recent literature. In this Article, the authors provide a general theory for understanding and evaluating slippery slope arguments and their associated slippery slope events. The central feature of the theory is a structure of discussion within which all arguments take place. The structure is multilayered, consisting of decisions, rules, theories...
The Failed Jurisprudence of Managed Care, and How to Fix It: Reinterpreting ERISA Preemption
Most Americans receive their healthcare from a managed care organization (MCO), which makes state regulation of MCOs a significant policy issue. Most Americans also obtain their MCO membership through an employer-sponsored benefits plan subject to federal regulation. Consequently, courts must determine whether and to what extent federal law preempts state MCO regulation. Over the last quarter...
Locking in Capital: What Corporate Law Achieved for Business Organizers in the Nineteenth Century
This Article argues that corporate status became popular in the nineteenth century as a way to organize production because of the unique manner in which incorporation permitted organizers to lock in financial capital. Unlike participants in a partnership, shareholders in an incorporated enterprise could not extract capital from the firm without explicit approval of a board of directors charged...