Michael T. Gibson

A CRITIQUE OF BEST PRACTICES IN LEGAL EDUCATION: FIVE THINGS ALL LAW PROFESSORS SHOULD KNOW

Michael T. Gibson — Mon, 17 Sep 2012 11:41:46 PDT

The Supreme Court and Freedom of Expression, 1791-1917

Michael T. Gibson — Thu, 20 Jan 2011 12:17:09 PST

This article identifies and discusses every U.S. Supreme Court decision between 1791 and 1917 which concerned freedom of speech or freedom of the press. It argues that modern courts should not use this caselaw to interpret the First Amendment.

Promissory Estoppel Article 2 of the U.C.C., and the Restatement (Third) of Contracts

Michael T. Gibson — Thu, 20 Jan 2011 12:16:03 PST

The thesis is that the text, legislative history, and purpose of Article 2 of the Uniform Commercial Code show that its drafters opposed the use of promissory estoppel in the law of Sales, that the relatively few courts which wrongly have used promissory estoppel in Sales cases have caused several major problems, and that the success of Article 2′s “agreement” theory, developed by Karl Llewellyn, has drastically reduced the need for promissory estoppel in commercial cases. In 1990, a group appointed by the Permanent Editorial Board of the Uniform Commercial Code cited this article in recommending revisions to Article 2 of the U.C.C.. See American Bar Association Task Force, An Appraisal of the March 1, 1990 Preliminary Report of the Uniform Commercial Code Article 2 Study Group, 16 DEL. J. CORP. L. 981, 1205 n.5 (1991). The article is discussed in two textbooks. See IAN AYRES & RICHARD E. SPEIDEL, STUDIES IN CONTRACT LAW 196-97 (Foundation Press 7th ed.) and CHARLES L. KNAPP, NATHAN M. CRYSTAL, & HARRY G. PRINCE, PROBLEMS IN CONTRACT LAW 139-40, 251 (Aspen Publishers 6th ed., 2007).

Private Concurrent Litigation in Light of Younger, Pennzoil, and Colorado River

Michael T. Gibson — Thu, 20 Jan 2011 12:15:07 PST

Private concurrent litigation occurs when the same dispute is litigated in federal and state courts at the same time. The first half of the article examines why this occurs and how it is affected by several landmark U.S. Supreme Court opinions on the subject of abstention. The last half of the article uses a study of eighty cases to show how the lower federal courts inappropriately use Colorado River Water Conservation District v. U.S., 424 U.S. 800 (1976) to dismiss federal cases in favor of concurrent state court litigation.

Reliance Damages in the Law of Sales Under Article 2 of the Uniform Commercial Code

Michael T. Gibson — Thu, 20 Jan 2011 12:14:08 PST

The article uses the text, legislative history, and purpose of Article 2′s remedial sections to show that the drafters intended only to provide expectation damages in Sales law. It empirically studies the types of Sales cases for which Contracts scholars have recommended the use of reliance damages, and it finds that courts actually award such damages in only 14 of 467 such cases (2.9%).

Congressional Authority to Induce Waivers of State Sovereign Immunity: The Conditional Spending Power (and Beyond)

Michael T. Gibson — Thu, 20 Jan 2011 12:12:49 PST

Congressional authority to override the immunity of States from suits filed by ordinary citizens is a highly controversial issue in Constitutional law. The U.S. Supreme Court repeatedly has said that federal courts cannot force a State to pay monetary damages to private plaintiffs, even when a State has badly injured someone. While the Court has recognized that Section 5 of the Fourteenth Amendment allows Congress to override State sovereign immunity, the Court has read Section 5 narrowly. This article develops other ways by which Congress can limit State sovereign immunity. Using decisions written by the late Chief Justice Rehnquist and by Justice Scalia, it shows that even the Court’s conservatives have recognized that Congress may use its Spending Power to work around the Court’s rules, and it argues that Congress has similar authority under its Commerce, Intellectual Property, and Bankruptcy Clauses. In essence, the article argues that when Congress confers a benefit on a State, such as a grant for funds to build a highway, the benefit of copyright protection for a State university’s sports logo, or a grant of regulatory authority, Congress may require States who accept such benefits to waive their immunity to suit.