Law Commons^™

Securitization: The Conflict Between Personal And Market Law (Contract And Property), Tamar Frankel

Faculty Scholarship

The road to securitization - transforming debt and loans into securities - is littered with obstacles. These obstacles seem unrelated. Yet, upon reflection, many legal and business problems arising in the securitization process can be traced to one source: the inherent conflict between contract law governing personal relations among creditors and debtors, and property law governing the same relations converted into "commodities" issued or traded in the market among investors. Identical terms can be characterized as contract loans in personal context, and as personal property (securities or bonds) in market context.

The Last Resort: The Use Of Physical Restraints In Medical Emergencies, George J. Annas

Faculty Scholarship

Public awareness of the use of restraints in medicine has been greatly heightened by a five-part investigative series on physical restraints in psychiatric hospitals by the Hartford Courant and reaction to it by Connecticut's U.S. senators, Joseph Lieberman and Christopher Dodd. In October 1998 the Courant 's 50-state survey identified 142 patients who had died while in restraints or seclusion in the past decade, and the total number is probably much higher. The newspaper advocated the need for national standards for the use of restraints, impartial oversight, and accountability “for behavior that is cruel and even criminal.” The use of …

Stem Cell Politics, Ethics And Medical Progress, George J. Annas

Faculty Scholarship

Controversy over how to fund and regulate stem cell research continues in the US and is unlikely to be resolved anytime soon. The National Institutes of Health (NIH) has announced that it is prepared to fund stem cell research under yet-to-be-specified guidelines. The National Bioethics Advisory Commission (NBAC) issued a report on stem cells in mid-September, recommending that Congress change the law to permit the derivation and use of stem cells from embryos no longer needed for reproduction purposes that are stored at in vitro fertilization (IVF) clinics. The NBAC also recommended that the Department of Health and Human Services …

Trends In The Regulation Of Investment Companies And Investment Advisers, Tamar Frankel

Faculty Scholarship

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A disclosure form, I the plain English Rule,² and the profile. ³ More generally, the Essay speculates on future trends in Securities and Exchange Commission ("Commission") enforcement, and predicts a continued and stronger use of informal enforcement by the Commission.

Medical Ethics And Human Rights: Legacies Of Nuremberg, George J. Annas, Michael A. Grodin

Faculty Scholarship

Many of our most important human rights documents are the product of the world's horror during the carnage of World War II. The broadest and most powerful declaration of human rights, the Universal Declaration of Human Rights, was adopted by the membership of the new United Nations in 1948. But there are also much more specific statements of the world's aspirations for all of its inhabitants. August 1997 marked the 50th anniversary of the conclusion of the trial of Nazi physicians at Nuremberg, a trial which has been variously designated as the "Doctors' Trial" and the "Medical Case."² In …

Chief Justice Holmes On The Science And Art (And Politics) Of Judging, David J. Seipp

Faculty Scholarship

Oliver Wendell Holmes, Jr. (1841-1935), twenty-fifth Chief Justice of Massachusetts, needs no introduction to the readers of this journal. Son and namesake of one of America's most popular writers, he was at twenty-four a Civil War hero wounded three times in battle, and at forty a lawyer-scholar whose book of lectures The Common Law would win him international renown. At sixtyone he began three decades as the Great Dissenter on the U.S. Supreme Court, where he exposed the economic theory underpinning the dominant freedom-of-contract ideology. Between 1882 and 1902-between early promise and later fame-he served on the Supreme Judicial Court …

Miller V. Albright: Problems Of Constitutionalization In Family Law, Katharine B. Silbaugh

Faculty Scholarship

From time to time, the Supreme Court chooses to hear a case addressing a family law issue. The family law cases accepted by the Supreme Court almost always present a constitutional challenge because absent a constitutional question, state law governs family law. Because the Supreme Court controls its docket, it is free to select only those cases that, in the view of the Court, pose particularly challenging issues. On most occasions, the Court chooses only those family law cases that present other, unrelated issues of interest to the Court.

Waste And Longing: The Legal Status Of Placental Blood Banking, George J. Annas

Faculty Scholarship

Waste is not always what it seems. In his Cold War novel Underworld, for example, Don DeLillo explores the multifaceted qualities of waste. “Waste,” he notes, “is the secret history, the underhistory, the way archaeologists dig out the history of early cultures, every sort of bone and broken tool, literally from under the ground.”1 And waste can also be transformed into money:

They are trading garbage in the commodity pits in Chicago. They are making synthetic feces in Dallas. You can sell your testicles to a firm in Russia that will give you four thousand dollars and then remove …

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Review Of The Year Books Of Richard Ii: 1382-1383 By Samuel E. Thorne & George F. Deiser, Eds., David J. Seipp

Faculty Scholarship

Of the making of Year Books there is no end. Three scholarly enterprises - the Rolls Series, Selden Society, and Ames Foundation - have undertaken to provide modern editions and translations of medieval English Year Books, the law French reports of oral pleading and judicial dialogue in lawsuits heard in the Common Bench and other common law courts. The present volume fills a gap in the most recent of these efforts, that of the Ames Foundation of Harvard Law School to print the surviving manuscript Year Books of the reign of Richard 11 (1377-1399). This volume, the sixth year of …

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

The Community Reinvestment Act: Questionable Premises And Perverse Incentives, Keith N. Hylton, Vincent D. Rougeau

Faculty Scholarship

Having just passed the twentieth anniversary of the enactment of the Community Reinvestment Act ^I ("CRA" or "Act"), this is an appropriate time to take stock of the effectiveness of the legislation and to consider whether it continues to be useful as a tool for addressing the problems of neighborhood decline and discrimination in the lending market. Although discrimination in lending and the decline of certain inner-city neighborhoods is a problem that the CRA has not been able to solve, most observers would agree that the situation has improved since the mid-1970s. ² In particular, there has been notable progress …

Downsizing The Right To Petition, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The First Amendment provides that "Congress shall make no law... abridging.., the right of the people.., to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

Progressing Towards A Uniform Commercial Code For Electronic Commerce Or Racing Toward Nonuniformity?, Maureen A. O'Rourke

Faculty Scholarship

The Magaziner Report encourages the development of a consistent commercial law environment against which electronic commerce transactions may take place. The author considers the current legal landscape, noting that while many efforts are underway to codify aspects of electronic commerce, these efforts are piecemeal in nature and may lead to the very lack of uniformity against which the Magaziner Report counsels. The author then briefly considers what lessons may be learned from the drafting history of the original U.C.C. as well as proposed Article 2B (now the Uniform Computer Information Transactions Act) governing transactions in computer information. She argues that …

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Maria O'Brien, Douglas D. Scherer, James Sharf, Richard Seymour, Paulette Caldwell

Faculty Scholarship

(The following is an edited transcript of the proceedings of the section on Employment Discrimination Law at the AALS Annual Meeting, New Orleans, Louisiana, January 9, 1999.)

DOUGLAS D. SCHERER*: Good morning. The program description asks the question, "Is there a disconnect between existing EEO jurisprudence and the realities of the workplace and workforce of the Twenty-First Century?" Societal disapproval of employment discrimination is reflected in federal EEO laws that have been enacted during the last thirty-six years and in court interpretations of these laws. The goals of these laws are fairly clear. It is less clear how well these …

Shortage And Tension On The Upper Rio Grande: Protecting Endangered Species During Times Of Drought, Comments From The Perspective Of The Middle Rio Grande Conservancy District, Maria O'Brien

Faculty Scholarship

Looking back at the drought of 1996 and at the efforts to protect endangered species in the midst of the drought, the most glaring fact remains that the water managers and users of the Rio Grande were in crisis management. In fact, despite some efforts, if the drought had manifested with equal or greater intensity in 1997, we would have remained in crisis management. Hence, as we move forward and examine lessons learned, the most vital premise we must return to is the imperative for balance as we undertake the precarious task of allocating water to protect endangered species, serve …

Digital Technology And Copyright: A Threat Or A Promise - Introduction, Michael J. Meurer

Faculty Scholarship

On November 14, 1998, Franklin Pierce Law Center (FPLC), in cooperation with the Kenneth J. Germeshausen Center for the Law of Innovation and Entrepreneurship and the PTC Research Foundation, both of which are headquartered at FPLC, held its Seventh Biennial Intellectual Property System Major Problems Conference. While noteworthy for a broadening in scope over previous conferences - from "patent system major problems" to "intellectual property system major problems" - the seventh biennial conference continues a tradition of scholarship and discussion begun in 1987 by former FPLC professor Homer O. Blair.

The discussions in Professor Blair's inaugural major problems conference focused …

Duty And Discretion In International Arbitration, William W. Park

Faculty Scholarship

International arbitration implicates complex relationships between the law of the place of arbitration and the law of the country where the parties' assets are located. The interaction of these legal orders has been highlighted by cases recognizing foreign awards notwithstanding their vacatur at the arbitral situs. The author examines the extent to which enforcement of vacated awards comports with the parties' expectations and arbitration's treaty framework. This Article suggests that the United States enact a statute clarifying the role and scope of federal judicial supervision of international commercial arbitration.

Thalidomide And The Titanic: Reconstructing The Technology Tragedies Of The Twentieth Century, George J. Annas

Faculty Scholarship

The Titanic has become a metaphor for the disastrous consequences of an unqualified belief in the safety and invincibility of new technology. Similarly, the thalidomide tragedy stands for all of the "monsters" that can be inadvertently or negligently created by modern medicine. Thalidomide, once banned, has returned to the center of controversy with the Food and Drug Administration's (FDA's) announcement that thalidomide will be placed on the market for the treatment of erythema nodosum leprosum, a severe dermatological complication of Hansen's disease. Although this indication is very restricted, thalidomide will be available for off-label uses once it is on the …

Burden Of Proof: Judging Science And Protecting Public Health In (And Out Of) The Courtroom, George J. Annas

Faculty Scholarship

The breast implant cases alleging systemic disease would in all likelihood have been lost had recipients been properly warned of potential dangers by the manufacturer or their surgeons.

Original Intent And Legal Interpretation, David B. Lyons

Faculty Scholarship

This paper offers a close analysis of intentionalism -- the idea that the meaning or proper application of written law is determined by certain historical facts about the mental states of those who made the law, at the time they did so. Unrestricted intentionalism faces deep-seated problems: it offers no guidance for resolving its own ambiguities, it almost certainly generates contradictions, and it almost certainly implies that some meaningful laws lack meaning or proper application. On purely theoretical grounds, therefore, the unrestricted theory is almost certainly untenable. I suggest further that there's little prospect of refining intentionalism so that it …

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson

Faculty Scholarship

Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question …

The Prosecutor's Ethical Duty To Seek Exculpatory Evidence In Police Hands: Lessons From England, Stanley Z. Fisher

Faculty Scholarship

The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to discloseexculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidenceto her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to …

The Internet, Securities Regulation, And Theory Of Law, Tamar Frankel

Faculty Scholarship

Rarely has a change in the environment affected society as dramatically as the Internet. It has transformed the way we retain, transfer, and exchange information. At minimal cost, the Internet offers us far more information at a faster pace than ever before. It enables us to interact around the globe with more people than at any time in the past. When such dramatic environmental changes occur, drastic changes in the law often follow. 1 The Internet affects the environment in which securities markets operate, and the laws that govern them. 2 The use of the Internet has already begun to …

Possible Solutions: Policy Tools To Achieve Flexibility To Meet New Conditions, Preliminary Thoughts For Coping With Future Droughts, Maria O'Brien

Faculty Scholarship

The following comments are premised on the author's experience with the Middle Rio Grande Conservancy District (Conservancy) in New Mexico and its endeavor to implement a water banking system. Background information about the Conservancy is helpful for an understanding of its efforts at water banking.

Fair Division, Michael J. Meurer

Faculty Scholarship

In this article I introduce legal scholars to concepts of fairness developed by microeconomic theorists. My starting point is a review of the books: Cooperative Microeconomics: A Game-Theoretic Introduction, by Herve Moulin, and Equity: In Theory and Practice, by H. Peyton Young. The books explain how to use cooperative game theory to study the fair allocation of benefits and costs. I illustrate the use of cooperative game theory by applying it to various problems of fair division in the law. I believe formal analysis of fair division is valuable because it allows scholars to connect their intuitive sense of fairness …

The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz

Faculty Scholarship

On July 1, 1997, the Federal Trade Commission (FTC) closed its investigation of the merger of the Boeing Company (Boeing) and the McDonnell Douglas Corporation (McDonnell Douglas), essentially approving the merger. The proposed $14 billion merger was quite significant, as it would unite the first and third largest civil aircraft companies in the world. Although the proposed merger had passed muster under U.S. antitrust laws, Boeing still faced the obstacle of gaining approval from the European Commission (EC), the antitrust enforcement agency of the European Union (EU). The EC initially sought to reject the merger and to levy heavy penalties …