Law Commons^™

Something's Gotta Give: Origin-Based E-Commerce Sales Tax, Juliana Frenkel

Brooklyn Journal of Corporate, Financial & Commercial Law

How to tax interstate online purchases is a frequently debated and contentious topic in the business and tax arena. There are numerous parties affected when a transaction occurs and each affected party would like a taxation policy that benefits its own economic interests, without regard for others. Neither the legislative nor the judicial branch has successfully resolved this e-commerce taxation issue. With the growing need for tax revenue, it is prudent for Congress to finally resolve this circuit split and agree on a unifying Online Sales Tax Law. As opposed to the vast majority of proposals pending in Congress, this …

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

Social Value Orientation And The Law, Rebecca Hollander-Blumoff

William & Mary Law Review

Social value orientation is a psychological trait defined as an individual’s natural preference with respect to the allocation of resources. Law and economics scholarship takes as its starting point the rational actor, who is by definition interested solely in maximizing her own personal utility. But social psychology research demonstrates that, in study after study, approximately half of individuals demonstrate a “prosocial” orientation, meaning that they are interested in maximizing the total outcome of the group and are dedicated to an equal split of resources. Only around a quarter of individuals identify as “proself” individualists who prefer to maximize their own …

A Primer On Able Accounts, Christopher T. Mcgee, G. Alisa Ferguson

University of Richmond Law Review

No abstract provided.

Resurrecting Labor, Rick Bales

Maryland Law Review

Participation in American labor unions has changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike, and in much of the country, they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.

This Article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with gross domestic product (“GDP”) growth. …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

The Legal Architecture Of Nation-Building: An Introduction, Charles H. Norchi

Maine Law Review

In the future, a historian studying the early twenty-first century will observe a trend: numerous lawyers applying their skill sets to the problems of pathological states. Our future historian will note that the topography of the post-Cold War international system was marked by weakly-governed states failing. Fragile states eroded, frayed, and disintegrated under stress, and their internal social processes became highly susceptible to external forces. Powerful non-state actors, including private armies, operated within the porous boundaries of entities that were once functioning polities. Legal authority became divorced from political control as non-state actors wielded naked power, challenging formal state structures …

Millennials In Crisis: Myth-Busting Millennial Debt Narratives, Stephanie Ben-Ishai, Tanner Stanley

Osgoode Hall Law Journal

Intense pop-cultural commentary on millennial finances and indebtedness perpetuates two conflicting narratives. One suggests that millennials are doomed and face higher debt levels than earlier generations, compounded by rising tuition costs, a lack of affordable housing, high costs of living, and an increasingly competitive job market. The contrary “millennial bootstrapping” narrative denies that millennials are more financially challenged than previous generations and argues that millennials need to pull themselves up their proverbial bootstraps and improve their work ethic to secure financial success. This article fact-checks these two narratives and fills a significant gap in the Canadian academic literature on the …

General Theory Of Law And Development, Yong-Shik Lee

Cornell International Law Journal

Although scholarship in law and development that explores the relationship between law and social and economic progress has evolved over the last four decades, this area of inquiry remains unfamiliar to many legal scholars, lawyers, and policy makers. Scholars have not yet been able to develop a theory that systematically explains the interrelationship between law and development, which would establish law and development as a robust and coherent academic field. This Article attempts to fill this gap by presenting a general theory that defines the disciplinary parameters of law and development, and explains the mechanisms by which law impacts development. …

Lgbt Rights Are Human Rights: Conditioning Foreign Direct Investments On Domestic Policy Reform, Dara P. Brown

Cornell International Law Journal

No abstract provided.

The Uniform Commercial Acts, J.P. Mckeehan

Dickinson Law Review (2017-Present)

The Commissioners on Uniform State Laws have had twenty- five annual conferences. The principal fruit of their labors is represented by the Negotiable Instruments Act, enacted in forty-seven jurisdictions; the Warehouse Receipts Act, enacted in thirty-one jurisdictions; the Sales Act, enacted in fourteen jurisdictions, the Bills of Lading Act enacted in thirteen jurisdictions, and the Stock Transfer Act, enacted in nine jurisdictions. They have also drafted acts relating to divorce, family desertion, probate of wills, marriage evasion, workmen’s compensation and partnership but these have not yet been enacted in more than a few states. All of the commercial acts are …

Uniform Commercial Acts, Samuel Williston

Dickinson Law Review (2017-Present)

No abstract provided.

Do We Need A Global Commercial Code?, Michael Joachim Bonell

Dickinson Law Review (2017-Present)

The International Institute for the Unification of Private Law (UNIDROIT) first launched the idea of preparing a code of inter- national trade law. In 1970, the Secretariat of UNIDROIT submitted a note to the newly established United Nations Commission on International Trade Law (UNCITRAL) in justification of such an initiative and indicated some of the salient features of the project. What was proposed was a veritable code in the continental sense. The proposed code included two parts: part one dealing with the law of obligations generally, and part two relating to specific kinds of commercial transactions. However, the “Progressive codification …

Remembering An Abolitionist, Ambassador John R. Miller (May 23, 1938-October 4, 2017), Eleanor Kennelly Gaetan, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

A memorial for Ambassador-at-Large to Monitor and Combat Trafficking in Persons, John R. Miller (May 23, 1938-October 4, 2017). Ambassador Miller believed modern-day slavery, encompassing sex trafficking and forced labor, requires a principled global offensive that the United States is morally obligated to lead. In the four formative years he led the State Department’s Office to Monitor and Combat Trafficking in Persons, 2002 to 2006, John Miller set the office’s course as diplomatically aggressive and programmatically creative. He made the annual Trafficking in Persons report more than a bureaucratic submission, putting daring heroes at the center, and insisting on compelling …

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

Unequal Justice For The Poor: Theory, Research, And Commentary, Mitchell S. G. Klein, Walter J. Burkard

The Catholic Lawyer

No abstract provided.

The Untold Story Of The Justice Gap: Integrating Poverty Law Into The Law School Curriculum, Vanita S. Snow

Pace Law Review

No abstract provided.

Critical Developments In The Vow Of Poverty Area And Update On Unrelated Business, Charles M. Whelan, S.J., Professor Of Law, Fordham Law School; Office Of General Counsel, United States Catholic Conference

The Catholic Lawyer

No abstract provided.

The New International Economic Order And Christian Charity, Lilia R. Bautista

The Catholic Lawyer

No abstract provided.

The New International Economic Order: Christian Principles Between Developed And Developing Countries, Carolyn J. Slasinski

The Catholic Lawyer

No abstract provided.

Industry Spotlight: Technology Patents

Marriott Student Review

Technology patents serve two purposes: to protect competition in the marketplace and to promote collaborative innovation amongst rival firms. Society benefits when technology firms are made to share patents at fair rates. The costs and benefits of technology patents are discussed in the context of industry expectations, and the broader implications for society. Firms should be encouraged to continue innovating, benefiting society as they go.

Amoral Machines, Or: How Roboticists Can Learn To Stop Worrying And Love The Law, Bryan Casey

Northwestern University Law Review

The media and academic dialogue surrounding high-stakes decisionmaking by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit-maximizing firms risks marginalizing the field of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course correction. Invoking Justice Oliver Wendell Holmes’s canonical analogy of the “bad man . . . who cares nothing for . . . ethical rules,” it demonstrates why philosophical abstractions like …

Volume 4 Issue 2 (Complete Spring 2017), David J.. Cook, Zachary Bolitho, Evan Wright, George Steven Swan, Cynthia Brown

Lincoln Memorial University Law Review Archive

A complete version of LMU Law Review Volume Issue 2 for Spring 2017.

Beyond The Money: Expected (And Unexpected) Consequences Of America's War On Drugs, Cynthia Brown

Lincoln Memorial University Law Review Archive

The purpose of this paper is to provide a high-level survey of our nation’s prohibition policies within the context of the costs of the law enforcement efforts upholding those policies. The discussion will offer a cursory review of the economic expense of the war on drugs with tangential coverage of the constitutional, institutional and intangible expenses that are inseparable from an assessment of the costs of America’s drug control efforts. Part I provides a historical review of illicit drug use in the United States, while Part II supplies the evolution of the country’s efforts to codify its drug control policies. …

Labor Leading On Climate: A Policy Platform To Address Rising Inequality And Rising Sea Levels In New York State, J. Mijin Cha

Pace Environmental Law Review

With the renewed need for state action, this paper presents a case study of a labor-led initiative in New York State that seeks to address both economic inequality and the climate crisis. It discusses how organized labor, which has historically represented fossil fuel workers and has not been seen as a traditional climate ally, put forth a comprehensive climate jobs plan that could meaningfully reduce carbon emissions while also creating good, family-sustaining jobs to reduce income inequality. As the need for a broader coalition to advocate for sensible climate policy increases, this case study provides a road map for states …

Markets And Sovereignty, Joseph Blocher, Mitu Gulati

Osgoode Hall Law Journal

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between …

Workin’ 9:00–5:00 For Nine Months: Assessing Pregnancy Discrimination Laws In Georgia, Kaitlyn Pettet

Georgia State University Law Review

As demonstrated in this Note, there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.

In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC). By 2011, that number rose to 5,800. The EEOC won significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace. Additionally, this rise in claims and awards caught the attention of the nation’s media, placing new emphasis on the treatment of pregnant women …