Law Commons^™

Business Torts And Unfair Competition Handbook, 3rd Edn, Maurice Stucke

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No abstract provided.

Flourishing Rights, Wendy A. Bach

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Flourishing Rights reviews Clare Huntington’s Failure to Flourish: How Law Undermines Family Relationships, recently published by the Oxford University Press. This review explores the way that specific issues at the heart of the relationship between poor families and the state affects Huntington’s thesis and proposals. The review largely applauds the book but concludes that a robust form of rights protection, when combined with the impressive policy arguments Huntington marshals, might actually make real the audacious idea that everyone has a right to flourish.

Fundamental Changes In The Llc: A Study In Path-Divergence And Convergence, Joan Macleod Heminway

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Issues relating to fundamental changes in LLCs — matters such as amendments to organizational documents, mergers, conversions, domestications, and dissolutions — have received little consideration in the law literature. While they are regular occurrences in the lifecycle of a firm, they are not in front of an LLC’s management or legal counsel every day. Having said that, they are critically important aspects of the law governing LLCs, especially in transformative times. This draft book chapter, written for the forthcoming Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman & Mark J. Loewenstein eds., Edward Elgar …

Truancy Lawyering In Status Offense Cases: An Access To Justice Challenge, Dean Rivkin

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No abstract provided.

Happy Together? The Uneasy Coexistence Of Federal And State Protection For Sound Recordings, Gary Pulsinelli

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Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already …

Women In The Crowd Of Corporate Directors: Following, Walking Alone, And Meaningfully Contributing, Joan Macleod Heminway

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With the thought that new perspectives often can be helpful in addressing long-standing unresolved questions, this article approaches an analysis of women’s roles on corporate boards of directors from the standpoint of crowd theory. Crowd theory — in reality, a group of theories — explains the behavior of people in crowds. Specifically, this article describes theories of the crowd from social psychology and applies them to the literature on female corporate directors, looking at the effects on both women as crowd members and boards as decision-making crowds.

Unfortunately, while the crowd theory perspective provides some insights, they are not altogether …

Book Review: Humane Migration: Establishing Legitimacy And Rights For Displaced People., Fran Ansley

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No abstract provided.

The Indie Lawyer Of The Future: How New Technology, Cultural Trends, And Market Forces Can Transform The Solo Practice Of Law, Lucille Jewel

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This article is about individual lawyers innovating in the practice of law. New technology, cultural trends, and market forces have the potential to awaken latent markets for one-to-one legal services grounded in the sharing economy, the commons, DIY businesses, and other similar endeavors. These forces might reshape the solo practice of law, which in turn might induce structural change in the legal system itself. Despite the mass commoditization of many law products, there is a potentially new market for craft-oriented lawyers who directly connect with clients.

When we connect the sharing economy and the cultural values that support it with …

Don't Fear The Leaker: Thoughts On Bureaucracy And Ethical Whistleblowing, Glenn Harlan Reynolds

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In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal.

Brief Of Professors At Law And Business Schools As Amici Curiae In Support Of Respondents, Omnicare, Inc., Et Al., Petitioners, V. Laborers District Council Construction Industry Pension Fund, Et Al., Respondents, No. 13-435 (S. Ct. Sept. 2, 2014), Joan Macleod Heminway, J. Robert Brown, Celia Taylor, Lyman P.Q. Johnson

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This Amicus Brief was filed on behalf of more than 20 law and business faculty in a case arising under Section 11 of the Securities Act of 1933. The issue framed by the parties sought to define the test for establishing the falsity of an opinion that was not subjectively believed. The statement at issue involved representations that contracts were legally valid. The Brief took the position that the statement was not an opinion. A representation about the legal validity of contracts, like other matters of present fact, can be false on the date made. Nonetheless, a speaker may express …

Evolution Of Chattel Paper: From Possession To Control, Thomas E. Plank

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Since its inception, Article 9 has authorized both non-possessory assignment of chattel paper perfected by the filing of a financing statement and a possessory assignment perfected by possession. As a result, tangible chattel paper is “quasi-negotiable” because certain purchasers for value with possession can have priority over previously perfected secured parties. The 2000 revision of Article 9 authorized security agreements evidenced by an electronic record or records and created electronic chattel paper as a new sub-type of collateral. To extend quasi-negotiability to electronic chattel paper, it also introduced the concept of “control” as an analogue to possession of tangible chattel …

Out With The Old, In With The New Two Perspectives On Implementing Libguides At An Academic And A Public Law Library, Shamika Dalton

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LibGuides can be a great tool, as many librarians in various types of institutions will testify. But there are some considerations for their use. Following, Danielle A. Becker, electronic services librarian at Minnesota State Law Library, and Shamika D. Dalton, assistant university librarian at University of Florida Levin College of Law, provide their insights on working with the tool in their respective institutions.

Investor And Market Protection In The Crowdfunding Era: Disclosing To And For The 'Crowd', Joan Macleod Heminway

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This article focuses on disclosure regulation in a specific context: securities crowdfunding (also known as crowdfund investing or investment crowdfunding). The intended primary audience for disclosures made in the crowdfund investing setting is the “crowd,” an ill-defined group of potential and actual investors in securities offered and sold through crowdfunding. Securities crowdfunding, for purposes of this article, refers to an offering of securities made over the Internet to a broad-based, unstructured group of investors who are not qualified by geography, financial wherewithal, access to information, investment experience or acumen, or any other criterion.

To assess disclosure to and for the …

Sentencing Inequality Versus Sentencing Injustice, Melanie Wilson

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No abstract provided.

Anti-Justice, Melanie Wilson

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This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

In Search Of Effective Ethics & Compliance Programs, Maurice Stucke

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The U.S. Sentencing Commission's Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective.

As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical.

The problem is not attributable to three assumptions underlying the Guidelines. The empirical research, while still …

Reasonable Accommodation As Professional Responsibility, Reasonable Accommodation As Professionalism, Alex B. Long

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The American legal profession has been slow to remove the barriers that exclude individuals with disabilities. As a result, people with disabilities remain underrepresented in the practice of law. While the Americans with Disabilities Act prohibits employment discrimination and requires employers to provide reasonable accommodations for employees with disabilities, there remain significant barriers to employment for lawyers with disabilities. This Article argues that the legal profession should view the legal requirements of reasonable accommodation and equal employment opportunities for lawyers with disabilities as fundamental components of professional responsibility and professionalism.

Crossing The Rubicon: Why The Comcast/Time Warner Cable Merger Should Be Blocked, Maurice Stucke, Allen Grunes

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Comcast and Time Warner Cable say their proposed $45 billion merger would not raise prices -- and instead lead to real benefits -- for cable and broadband customers across the country.

But, as we discuss, the deal raises serious concerns of a creeping monopolist and the ability of a powerful media buyer to harm rivals.

Foreword: The Second Amendment As Ordinary Constitutional Law, Glenn Harlan Reynolds

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In recent years, the Second Amendment has gone from a subject of scholarly and political debate with no real judicial role, to a clearly established individual right that is being enforced in lower courts. This Essay, the foreword to a forthcoming Tennessee Law Review symposium on the Second Amendment, explores how that happened, and what is likely to come next.

The Beneficent Monopolist, Maurice Stucke, Allen Grunes

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In examining Comcast's proposed acquisition of Time Warner Cable (TWC), we assess three of the arguments Comcast likely will make to the Department of Justice and FCC. Comcast will likely argue that its acquisition of TWC is unlikely to lessen competition because: (a) the broadband market is becoming more competitive: Google has introduced Google Fiber in a number of markets, and mobile broadband offered by wireless providers like AT&T and Sprint is competitive with fixed broadband; (b) Netflix and traditional media companies have sufficient clout to negotiate with Comcast and the government should not intervene on their behalf; and (c) …

Abi Commission Testimony November 7, 2013, George Kuney

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There are two areas that I believe should be the focus of Chapter 11 reform: reducing reorganization costs in small to middle-market cases and instituting a uniform structure and process for § 363 sales of substantially all the assets of a debtor. Essentially, I think that the plan process in all cases needs to be streamlined and sped up to decrease transactions costs, and the 363 sale process needs to be slowed down to promote more robust disclosure and exposure of the assets in question to the market.

The Forgotten Role Of Consent In Defamation And Employment Reference Cases, Alex B. Long

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As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of …

Dysfunction Junction: Reasonable Cause And Good Faith Reliance On Tax Advisors With Conflicts Of Interest, Michelle M. Kwon

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Taxpayers who underpay their taxes may be liable for accuracy-related penalties if the underpayment is attributable to negligence or the careless, reckless, or intentional disregard of rules or regulations. Understatements of tax liability resulting from participation in certain types of tax avoidance transactions are also subject to penalties. Accuracy-related penalties may be imposed even with respect to innocent mistakes if the discrepancy between a taxpayer's correct and reported tax liability is sufficiently large.

Taxpayers may, however, avoid accuracy-related penalties by relying on a reasonable cause defense. The reasonable cause defense may be satisfied by relying on professional tax advice even …

Michael J. Sandel, What Money Can't Buy: The Moral Limits Of Markets, Maurice Stucke

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No abstract provided.

The Lawyer's Monopoly — What Goes And What Stays, Benjamin H. Barton

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We live in a time of unprecedented changes for American lawyers, probably the greatest changes since the Great Depression. That period saw the creation of the lawyer’s monopoly through a series of regulatory modifications. Will we see the same following the Great Recession? Formally, no. This Article predicts that formal lawyer regulation in 2023 will look remarkably similar to lawyer regulation in 2013. This is because lawyer regulators will not want to rock the boat in the profession or in law schools during a time of roil.

Informally, yes! We are already seeing a combination of computerization, outsourcing, and nonlawyer …

How Congress Killed Investment Crowdfunding: A Tale Of Political Pressure, Hasty Decisions, And Inexpert Judgments That Begs For A Happy Ending, Joan Macleod Heminway

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In April 2012, President Obama signed into law the Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act (the “CROWDFUND Act”) as Title III of the Jumpstart Our Business Startups Act. The U.S. Securities and Exchange Commission (“SEC”) was compelled to promulgate enabling regulation to effectuate the CROWDFUND Act. That rulemaking has been slow in coming.

During this period of delay, commentators have routinely denounced the postponement and expressed fear that the SEC’s rulemaking would unduly limit investment crowdfunding. This Article demonstrates, however, that it is principally the U.S. Congress that has limited the capacity of the CROWDFUND Act …

Business Lawyering In The Crowdfunding Era, Joan Macleod Heminway

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Crowdfunding is all the rage in conversations about small business finance. Yet, as with many other rapidly developing business innovations, practicing lawyers were, perhaps, secondary players in the development of business models for crowdfunding. The advent of crowdfunding (and crowdfund investing, in particular) has exposed fault lines in business lawyering. This short Article defines the crowdfunding era, highlights a few examples of observed lawyering lapses, and, in concluding, offers a brief, preliminary assessment of possible sources of these dislocations and best practices. The conclusion also expresses a related cautionary note about the need for lawyers to redouble their efforts at …

Teaching Transactional Skills Using Real Clients From Clinic To Classroom, Brian Krumm, Shelley Dunck

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No abstract provided.

Securitization Of Aberrant Contract Receivables, Thomas E. Plank

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Originators of traditional receivables, such as automobile loans, use securitization and structured finance debt transactions to obtain financing at lower net costs than traditional secured financing. The typical securitization or structured finance debt transaction combines (i) a sale of receivables to a separate, bankruptcy remote, special purpose legal entity (an “SPE”) and (ii) a loan to the SPE secured by the receivables. This combination produces lower net financing costs because the SPE’s lender can obtain repayment of its loan from the receivables while avoiding the costs that the Bankruptcy Code imposes on direct secured lenders to originators that could become …

A Primer On Professionalism For Doctrinal Professors, Paula Schaefer

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Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought …