Law Commons^™

Corporate Personhood And Limited Sovereignty, Elizabeth Pollman

All Faculty Scholarship

This Article, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as rights-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their …

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly …

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

Trending @ Rwu Law: Professor Tanya Monestier's Post: Is Corporate Registration A Proper Basis For General Jurisdiction?: 02-09-2016, Tanya Monestier

Law School Blogs

No abstract provided.

Trending @ Rwulaw: Susan Schwab Heyman's Post: Defining The Boundaries Of Insider Trading, Susan Schwab Heyman

Law School Blogs

No abstract provided.

The End Of Class Actions?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court's decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to …

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele E. Gilman

All Faculty Scholarship

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

“Fine Distinctions” In The Contemporary Law Of Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding …

The Supreme Court's Theory Of The Fund, William Birdthistle

All Faculty Scholarship

Just as the firm has long served as the foundational molecule of the U.S. capitalist economy, theories of the firm have for more than a century dominated legal and economic discourse. Ever since Ronald Coase published The Nature of the Firm in 1937 and asked why firms should exist in an efficient market, classicists and neoclassicists have competed to develop theories — predominantly managerialist and contractual — that best explain the structure and behavior of business organizations.

The investment fund, by contrast, has languished at the margins of corporate theory, relegated as simply a minor, if somewhat curious, example of …

Gender And Securities Law In The Supreme Court, Lyman P.Q. Johnson, Michelle Harner, Jason A. Cantone

Scholarly Articles

The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them?

This article makes a novel contribution to the growing literature on female voting patterns. We investigated whether female justices on the United States Supreme Court voted differently than, or otherwise influenced, …

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

What Were They Thinking? Insider Trading And The Scienter Requirement, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

On its face, the connection between insider trading regulation and the state of mind of the trader or tipper seems intuitive. Insider trading is a form of market abuse: taking advantage of a secret to which one is not entitled, generally in breach of some kind of fiduciary-like duty. This chapter examines both the legal doctrine and the psychology associated with this pursuit. There is much conceptual confusion in how we define unlawful insider trading—the quixotic effort to build a coherent theory of insider trading by reference to the law of fraud, rather than a more expansive market abuse standard—which …

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

Publications

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …

Sosa V. Alvarez-Machain And Human Rights Claims Against Corporations Under The Alien Tort Statute, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing …

Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand

Scholarly Works

On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary …

The Supreme Court's Labor And Employment Decisions: 2002-2003 Term, Maria O'Brien

Faculty Scholarship

This article summarizes U.S. Supreme Court cases from the October 2002 term that related directly or indirectly to labor or employment law or have implications for labor and employment practitioners. Of particular interest are the University of Michigan affirmative action cases' and the Texas criminal sodomy case. ² Although not nominally "labor and employment" cases, these cases will profoundly affect labor and employment issues. Lawrence v. Texas has already altered the lenses through which society views homosexuality and altered public discourse related to homosexuality and same-sex relationships. ³ The reasoning of the Court shows how far issues of sexuality have …

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

Filling In The Gap Left By Congress: What Is The Statute Of Limitations For Private Rico Claims?, Barbara Black

Faculty Articles and Other Publications

In increasing number, victims of business fraud are bringing lawsuits under the Racketeer Influenced and Corrupt Organizations Act (RICO). Since the statute does not set out a time limit for bringing suit, the courts must determine the appropriate statute of limitations. Malley-Duff & Associates, Inc. v. Crown Life Insurance Co. illustrates the difficulties Congress creates for the courts when it fails to provide a limitations period. RICO makes it illegal to engage in a "pattern of racketeering activity" for certain illegal purposes. A "pattern of racketeering activity" consists of at least two acts of "racketeering activity" within a ten-year period. …

State And Local Regulation Affecting Public Lands Mineral Lease Activities: What Are The Limits?, Lawrence J. Macdonnell

Public Lands Mineral Leasing: Issues and Directions (Summer Conference, June 10-11)

27 pages.

Contains references.

Santa Fe Industries, Inc. V. Green: An Analysis Two Years Later, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

In 1977, the Supreme Court decided Santa Fe Industries, Inc. v. Green. Although the outcome of that decision should have surprised no one, since the trend of the Court clearly had been to constrict the scope of the federal securities legislation, the case was a major decision that will have a substantial impact on the development of corporate law in this country. Indeed, it may turn out to be one of the most significant corporate cases decided by the Supreme Court in recent years. Since by this point the dust has settled from the case, it seems appropriate to …