Law Commons^™

The Irrational Auditor And Irrational Liability, Adam C. Pritchard

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This Article argues that less liability for auditors in certain areas might encourage more accurate and useful financial statements, or at least equally accurate statements at a lower cost. Audit quality is promoted by three incentives: reputation, regulation, and litigation. When we take reputation and regulation into account, exposing auditors to potentially massive liability may undermine the effectiveness of reputation and regulation, thereby diminishing integrity of audited financial statements. The relation of litigation to the other incentives that promote audit quality has become more important in light of the sea change that occurred in the regulation of the auditing profession …

Biotechnology Entrepreneurship And Ethics: Principles, Paradigms, And Products, Patricia C. Kuszler

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Biotechnology, whether in the context of new drugs derived from DNA and genetic technology, genetically modified food, or biologics making use of living cells, raises ethical concerns at a variety of different levels. At the research level, there is concern that the very nature of research is being subverted, rather than enhanced, by entrepreneurship. This area of ethical concern has intensified in the United States as a result of the conflicts of interests resulting from the growing alliance between University academia and private industry in the research enterprise. As we travel down the research path into development of a drug …

The Impact Of Eu Unfair Contract Terms Law On U.S. Business-To-Consumer Internet Merchants, Jane K. Winn, Mark Webber

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This article focuses on the application of European Union unfair contract terms law to retail Internet transactions that U.S. businesses might engage in with European consumers. It compares attitudes toward consumer protection regulation in the U.S. and the EU to provide some context within which the specific provisions of unfair contract terms law can be understood.

While many lawyers and legal academics in the U.S. who study the development of online markets are aware of the profound differences in U.S. and EU information privacy laws, the magnitude of the divergence in consumer electronic contracting law is not as widely recognized. …

Strengthening Auditor Independence: Reestablising Audits As Control And Premium Signaling Mechanisms, Sean M. O'Connor

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As recent scandals have demonstrated, ensuring the independence of auditors from the publicly traded clients whose books they inspect is one of the most vexing problems in the financial world today. Arguably, the imposition of a mandatory audit system through the 1930s federal securities laws created the modern problem of auditor independence.

The core issue is that the statutory audit is simply a commodified cost of doing business for issuers that imposes an impossible obligation to serve an unspecified “investing public” on the auditors. Yet, this investing public neither hires, fires, nor controls the auditors. Instead, the audit relationship is …

New Life For The ‘Criteria Tests’ In State Constitutional Jurisprudence: ‘Gunwall Is Dead—Long Live Gunwall”, Hugh D. Spitzer

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Outlines the develoment of state constitutional jurisprudence in Washington State between 1986 and 2006. Provides a general theory of state constitutional analysis, and recommends retention of the "creteria" approach to application of state constitutions, primarily as an interpretive tool.

Assuring Access To Justice: The Role Of The Judge In Assisting Pro Se Litigants In Litigating Their Cases In New York City’S Housing Court, Paris R. Baldacci

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No abstract provided.

Cars And Homes In Chapter 13 After The 2005 Amendments To The Bankruptcy Code, David G. Carlson

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No abstract provided.

Ignore The Rumors—Campaigning From The Pulpit Is Okay: Thinking Past The Symbolism Of Section 501(C)(3), Michael Hatfield

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This Article is enough to ruin many Thanksgiving family dinners. It is about American religion, politics, and taxes. Mostly it is about taxes. As I will explain, this is what sets it apart from the contemporary legal scholarship exploring the campaign restrictions on tax exempt churches. This Introduction identifies the problem addressed in the article, then introduces the contemporary legal scholarship and the alternative approach this article takes.

Part I of this Article introduces the reader to the legal context of "the problem" of churches being unable to campaign if they choose to be Tax Exempt under Section 501 (c) …

The Institutional Ecology Of Ngos: Applying Hansmann To International Development, Johanna Kalb

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While initially heralded as the "magic bullet" for development, NGOs have come under increasing criticism for their failure to deliver "development" as promised. Despite the plethora of new critiques, little systematic work has theorized how NGOs actually operate within the least developed countries as economic and social institutions, and what structural conditions are necessary for NGOs to operate successfully. Drawing on existing theories of the nonprofit form in a functioning three-sector economy, the Article argues the absence of certain economic conditions has a negative impact on NGO efficiency and efficacy. For NGOs to succeed, they must exist in an economy …

U.S. Torture As Tort, Richard Henry Seamon

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Now that the United States has used torture in the war on terrorism and the victims of this torture have begun to sue, it is useful to analyze the potential liability of the United States and its officials for torture under current domestic law. This Article conducts that analysis, and, based on it, assesses the adequacy of current law. The Article concludes that the United States and its officials have no more than minimal liability for torture under current law. The Article also concludes that current law is inadequate. It is inadequate because it is based on considerations of when …

An Erie Obstacle To State Tort Reform, Richard Henry Seamon

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No abstract provided.

Lightening And Enlightening Exam Conferences, Richard Henry Seamon

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No abstract provided.

Chenery Ii And The Development Of Federal Administrative Law, Linda Jellum

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Liability, Regulation And Policy In Surgical Innovation: The Cutting Edge Of Research And Therapy, Anna C. Mastroianni

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This article examines the implications of the foregoing competing claims from a U.S. legal perspective, focusing particularly on how the legal system addresses patient safety concerns and autonomous decision-making of surgeons in the context of surgical innovation. The lack of oversight and the risks borne by patients during surgeons' development and subsequent refinement of a novel procedure must be balanced with the need to encourage medical progress through the development of improved techniques designed to benefit the health of current and future patients. This article argues that current reliance on the medical malpractice system and the federal regulatory system of …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

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This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …

Maiming The Cubs, James J. White

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It is easy to believe that students are made anxious and even depressed by law school and that the anxiety and depression stay with many students throughout school. It is harder to believe that these stresses cause permanent and irreversible change and that the ills of lawyers are traced in any meaningful way to the stresses of the three years of law school.

What We Know, And What We Should Know About American Trial Trends, Margo Schlanger

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More than a few people noticed that the American court system was seeing ever fewer trials before Marc Galanter named the phenomenon.' But until Galanter mobilized lawyers2 and scholars to look systematically at the issue, inquiry was both piecemeal and sparse. Over the past three years, in contrast, Galanter's research 3 and his idea entrepreneurship, crystallized in the "Vanishing Trial" label, has spawned if not a huge literature at least a substantial one. We have now gotten the benefit of sustained scholarly inquiry by researchers of many stripes. Their work has been largely, though not entirely, empirical, and so we …

The Man, The State And You: The Role Of The State In Regulating Gender Hierarchies, Meredith M. Render

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This paper begins with the thesis that an andocentric-assimilation model of women's liberation both has affected workplace outcomes for women and has desensitized us to those outcomes. The paper then applies that thesis to understandings of "equality" within a hierarchical framework, arguing that the equality-liberty dichotomy is false in the context of gender discrimination in the workplace. Instead the paper argues that disparate treatment is a liberty concern. In seeking to have our professional fates married to the fates of our male colleagues - which is what workplace equality doctrines aim to do - women are seeking to be only …

Dumbo's Feather: An Examination And Critique Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

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The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-thanreal constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor Krotoszynski …

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

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The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapantah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

Syringes In The Sea: Why Federal Regulation Of Medical Waste Is Long Overdue, Chryssa V. Deliganis, Steve P. Calandrillo

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Medical waste is produced everywhere that people live and by almost everyone at some point in their lives. Its treatment and disposal implicates the environment, public health, the economy, human dignity, and aesthetics. With the many issues involved, the need for federal regulation of medical waste today is manifest.

This Article examines the problem of medical waste disposal and evaluates the current state-based approach to regulation. Although many states have implemented stringent medical waste programs with some success, the absence of direct federal regulation in this area is problematic. The need for national leadership is clear, especially with respect to …

Latcrit X Afterword: Beyond The First Decade: A Forward-Looking History Of Latcrit Theory, Community And Praxis, Berta Hernandez-Truyol, Angela Harris, Francisco Valdes

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No abstract provided.

Constructing International Law In The East Indian Seas: Property, Sovereignty, Commerce And War In Hugo Grotius' De Iure Praedae - The Law Of Prize And Booty, Or On How To Distinguish Merchants From Pirates, Ileana Porras

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No abstract provided.

The Plural Of Anecdote Is "Blog", A. Michael Froomkin

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The False Panacea Of Offshore Deterrence, James C. Hathaway

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Governments take often shockingly blunt action to deter refugees and other migrants found on the high seas, in their island territories and in overseas enclaves. There is a pervasive belief that when deterrence is conducted at arms-length from the homeland it is either legitimate or, at the very least, immune from legal accountability.

Abuse Prevention 2005, James J. White

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Today I do not debate the empirical question (what is the cause of the increase in bankruptcy filings?) nor do I address the buried moral question (who deserves the protection of bankruptcy law?). Rather, I speculate about the consequences of 2005 amendments to the Bankruptcy Code and about the reasons it will achieve or fail to achieve the goals of its sponsors. Along the way I hope to learn something about how law changes, or fails to change behavior.

Textualism In Gatt/Wto Jurisprudence: Lessons For The Constitutionalization Debate, Dongsheng Zang

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Today, the World Trade Organization (WTO) jurisprudence is subject to tremendous controversy, the WTO panels' or Appellate Body's interpretation of a WTO text is often heatedly debated; and yet, there seems not much attention paid to the general methodology of interpretation in the practice of the General Agreement on Tariff and Trade (GATT) and WTO jurisprudence, even in a recent debate over constitutionalization between Petersmann and his critics. In rejecting his human rights approach to constitutionalization, Petersmann's critics, rightfully, warn him that he has failed to appreciate the complex relations between human rights and free trade in the history of …

The Report Of The President's Advisory Panel On Federal Tax Reform: A Critical Assessment And A Proposal, Reuven S. Avi-Yonah

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ON November 1, 2005, The President's Advisory Panel on Federal Tax Reform ("Panel") submitted its report ("Report") to the Secretary of the Treasury.1 At 272 pages, this is the most important and wide-ranging plan to reform the United States federal tax system since Blueprints for Basic Tax Reform (1977).2 While prospects for immediate action appear dim, the Report will no doubt be the basis of discussion of federal tax reform for a long time to come.

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor

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The recent focus on patents as a hindrance to stem cell research may turn out to be a red herring. The real culprits are material transfer agreements (MTAs), which govern the transfer of cell lines and other biological materials. The MTA’s primary purpose in life sciences research is to set contractual rights and obligations between parties where one party transfers biological materials to the other. For example, MTAs often focus on the physical handling, use, and distribution of the materials by the recipient, ensuring that the recipient complies with regulations for research involving humans or animals.

Although these interests are …

Legal Doubletalk And The Concern With Positional Conflicts: A "Foolish Consistency"?, Helen A. Anderson

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This article argues that a legal positional conflict is not a true conflict of interest, and should not be the subject of an ethical prohibition. Because of the incentives it creates, a rule against positional conflicts gives greater control to wealthy clients over the availability of legal services without significantly protecting the rights of the poor or middle income clients. Business conflicts already exert significant pressure on lawyers; too much concern with potential positional conflicts only increases that pressure.

This article also argues that eliminating an ethical prohibition against potential conflicts could mitigate much of the credibility concerns raised by …