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Articles 1 - 30 of 34
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Stein Center News - December 2013, Stein Center For Law And Ethics
Stein Center News - December 2013, Stein Center For Law And Ethics
Stein Center News
No abstract provided.
Stein Center News - May 2013, Stein Center For Law And Ethics
Stein Center News - May 2013, Stein Center For Law And Ethics
Stein Center News
No abstract provided.
Stein Center News - March 2013, Stein Center For Law And Ethics
Stein Center News - March 2013, Stein Center For Law And Ethics
Stein Center News
No abstract provided.
Financial Retrenchment And Institutional Entrenchment: Will Legal Education Respond, Explode, Or Just Wait It Out?, Ian Weinstein
Financial Retrenchment And Institutional Entrenchment: Will Legal Education Respond, Explode, Or Just Wait It Out?, Ian Weinstein
Faculty Scholarship
Both markets and ideas have turned against the American legal profession. Legal hiring has contracted, and law school enrollments are decreasing. The business models of big law and legal education are under pressure, current levels of student indebtedness seem unsustainable, and a hero has yet to emerge from our fragmented regulatory structures. In the realm of ideas, the information revolution has sparked deep critiques of structured knowledge and expertise, opening the roles of the law and the university in society to reexamination. We are less enamored of the scholar-lawyer and gaze with longing at technocrats. I hope that clinical law …
The Public’S Constitutional Thinking And The Fate Of Health Care Reform: Ppaca As Case Study, Bruce G. Peabody, Peter J. Woolley
The Public’S Constitutional Thinking And The Fate Of Health Care Reform: Ppaca As Case Study, Bruce G. Peabody, Peter J. Woolley
Res Gestae
No abstract provided.
Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney
Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney
Faculty Scholarship
This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …
The Inner Morality Of Private Law, Benjamin C. Zipursky
The Inner Morality Of Private Law, Benjamin C. Zipursky
Faculty Scholarship
Lon Fuller's classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name "law" at all. In this essay, I argue that Fuller's basic principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, …
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb
Faculty Scholarship
Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Faculty Scholarship
The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel
Faculty Scholarship
The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner
Faculty Scholarship
In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green
Faculty Scholarship
This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …
Towards Engaged Scholarship, Nestor M. Davidson
Towards Engaged Scholarship, Nestor M. Davidson
Faculty Scholarship
No abstract provided.
Language, Legal Origins, And Culture Before The Courts: Cross-Citations Between Supreme Courts In Europe, Martin Gelter, Mathias M. Siems
Language, Legal Origins, And Culture Before The Courts: Cross-Citations Between Supreme Courts In Europe, Martin Gelter, Mathias M. Siems
Faculty Scholarship
Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this article and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries for the time between 2000 and 2007. In the present article we show …
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno
Faculty Scholarship
This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from …
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
According To Our Hearts And Location: Toward A Structuralist Approach To The Study Of Interracial Families, Robin A. Lenhardt
Faculty Scholarship
This Article offers a review of Angela Onwuachi-Willig’s wonderful book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Race scholars have begun to productively deploy structuralism to discuss cumulative racial disadvantage and the ongoing, racially segregative effects of government systems and policies. of such systems on intimate choice and family formation. Likewise, some scholars have employed structuralism to explore how law shapes our intimate preferences and opportunities for intimate engagements. Still, scholars of this very exciting work have not yet engaged as fully as they might regarding questions of race. This Article contends that …
The Regulation Of Race In Science, Kimani Paul-Emile
The Regulation Of Race In Science, Kimani Paul-Emile
Faculty Scholarship
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …
Google And Search-Engine Market Power, Mark R. Patterson
Google And Search-Engine Market Power, Mark R. Patterson
Faculty Scholarship
A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated …
Review Of Out In Africa: Lgbt Organizing In Namibia And South Africa, Chi Adanna Mgbako
Review Of Out In Africa: Lgbt Organizing In Namibia And South Africa, Chi Adanna Mgbako
Faculty Scholarship
This is a review of the book Out in Africa: LGBT Organizing in Namibia and South Africa by Ashley Currier.
Oil And Water: Mixing Taxable And Tax-Exempt Shareholders In Mutual Funds, Jeffrey M. Colon
Oil And Water: Mixing Taxable And Tax-Exempt Shareholders In Mutual Funds, Jeffrey M. Colon
Faculty Scholarship
As of 2012, roughly 23% of U.S. households’ assets and 50% of retirement assets are invested in mutual funds, thus making mutual funds one of the most important investment vehicles for U.S. households. The federal taxation of mutual funds and mutual fund shareholders has played a vital role in the development of mutual funds and their appeal to U.S. investors. Despite the significant amount of mutual fund assets held in retirement accounts, there has been very little analysis of the issues that arise when taxable and tax-exempt shareholders invest together in the same mutual fund. A substantial body of research …
U.S. Global Aids Funding And Its Discontents: Why The Supreme Court Must Strike Down The Anti-Prostitution Pledge, Chi Adanna Mgbako
U.S. Global Aids Funding And Its Discontents: Why The Supreme Court Must Strike Down The Anti-Prostitution Pledge, Chi Adanna Mgbako
Faculty Scholarship
This op-ed recommends that the U.S. Supreme Court strike down the "anti-prostitution pledge," a Congressional requirement forcing organizations receiving U.S. global AIDS funding to adopt policies "opposing prostitution and sex trafficking."
The Pension System And The Rise Of Shareholder Primacy, Martin Gelter
The Pension System And The Rise Of Shareholder Primacy, Martin Gelter
Faculty Scholarship
No abstract provided.
The Omnipresent Specter Of Omnicare, Sean J. Griffith
The Omnipresent Specter Of Omnicare, Sean J. Griffith
Faculty Scholarship
In this Article, written for a symposium commemorating the tenth anniversary of the Delaware Supreme Court’s opinion in Omnicare, Inc. v. NCS Healthcare, Inc., I argue, notwithstanding reports to the contrary, that Omnicare is still very much with us. Although there is a line of cases that qualifies the narrow holding of the opinion, the strong reading of Omnicare, which requires a fiduciary out in every merger agreement and elevates the “unremitting” duty to remain “fully informed” to an absolute jurisprudential principle, lives on in Delaware law, animating the Court of Chancery’s controversial rulings in the recent standstill cases. Shifting …
The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson
The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson
Faculty Scholarship
These opening lines from Chevron's website of "facts about Chevron and Texaco in Ecuador" refer to the latest salvo in a long-running environmental dispute concerning a Texaco subsidiary's Ecuadorian oil-drilling activities. Chevron resisted enforcement in the United States of an Ecuadorian court's $18 billion judgment, and the plaintiffs are seeking to enforce the judgment against Chevron in various courts around the world. Chevron's account suggests that the plaintiffs' lawyers are engaged in improper forum-shopping. The plaintiffs'lawyers, according to Chevron, ought to pursue enforcement of the judgment in the United States.
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
Faculty Scholarship
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus
Faculty Scholarship
Activists for sex worker rights in South Africa are leading a sophisticated national campaign to decriminalize sex work. This Article serves as an act of solidarity with these activists’ continued efforts to fight for and realize sex workers’ human rights by examining the negative impact that criminalizing prostitution has on sex workers’ rights and presenting evidence-based arguments to show that South Africa should enact legislation to fully decriminalize sex work. South African sex workers’ real-life experiences with violence, police abuse, and lack of access to health care and the justice system, highlighted through interviews conducted by the authors during fieldwork …
Review Of "Confucian Constitutional Order: How China’S Ancient Past Can Shape Its Political Future" By Jiang Qing, Carl F. Minzner
Review Of "Confucian Constitutional Order: How China’S Ancient Past Can Shape Its Political Future" By Jiang Qing, Carl F. Minzner
Faculty Scholarship
No abstract provided.
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Chamallas, And Robinette, Benjamin C. Zipursky, John C.P. Goldberg
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Chamallas, And Robinette, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers to the difficult questions that courts face when applying Tort Law. We show with several examples, both old and new, that the glibness is all on their side. From duty to causation to punitive damages, from products liability to fraud to privacy, our scholarship has had …
A Most Useful Ball Of Thread, Review Of Navigating Hud Programs: A Practitioner's To The Labyrinth By George Weidenfeller & Julie S. Mcgovern, Eds., Nestor M. Davidson
A Most Useful Ball Of Thread, Review Of Navigating Hud Programs: A Practitioner's To The Labyrinth By George Weidenfeller & Julie S. Mcgovern, Eds., Nestor M. Davidson
Faculty Scholarship
This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green
Faculty Scholarship
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …