Law Commons^™

Rationalizing Entity Law: Corporate Law And Alternative Entities (Part Ii), Joan Macleod Heminway

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No abstract provided.

No Child Left Behind - Representing Youth And Families In Truancy Matters, Dean Rivkin

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No abstract provided.

Willful Blindness, Plausible Deniability, And Tippee Liability: Sac, Steven Cohen, And The Court's Opinion In Dirks, Joan Macleod Heminway

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Is the principal of a securities trading firm able to remain ignorant about the source of information used in trading on the principal's behalf and avoid liability for insider trading under U.S. law? This short essay explores that question using the SAC Capital Advisors, L.P. and Steven Cohen as an example case, reflecting on the law established by the Supreme Court in its opinion in Dirks v. SEC in light of both the Second Circuit opinion in SEC v. Obus and changes, occasioned by Regulation FD, in the nature of securities analysts’ work and the overall information entrepreneurialism of market …

Addressing Shortfalls In Traditional Legal Education: Ut's Concentrations And Capstones And Waller Lansden's Schola2juris Program, George Kuney, Joseph Watson

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Law school’s traditional educational model needs to be revamped. The traditional law firm’s summer associate model needs restructuring. Some might say they are both broken. Across the country, educators, and commentators are talking about legal education reforms and leading law firms are confronting how to improve the age-old mechanism for recruiting law students.

In the recent past, the legal employment landscape provided no incentive for law firms to question their traditional recruiting practices. The traditional law-firm recruitment model — the summer-associate program — is often little more than a glorified summer camp for some of the most highly educated — …

Legal Form, Style, And Etiquette For Email, George Kuney

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No abstract provided.

Tales Of A Fourth Tier Nothing, A Response To Brian Tamanaha's Failing Law Schools, Lucille Jewel

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This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis.

Part One addresses the idea, which dates back to 1921, that …

The Indefinite Quarantine: A Public Health Review Of Chronic Inconsistencies In Sexually Violent Predator Statutes, Isaac ("Zack") D. Buck

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Fifteen years after the Supreme Court’s decision in Kansas v. Hendricks upheld their constitutionality, sexually violent predator (SVP) statutes exist in 20 states and the federal code. Committing sex offenders indefinitely in an effort to protect the public, SVP statutes have survived academic criticism and mushrooming expense, targeting society’s most unpopular subjects and unpalatable crimes. In upholding the statutes against constitutional attack in Hendricks, the Court relied upon the state’s demonstrable power to preventively detain individuals during public health emergencies – analogous to the civil detention model of quarantine – to establish the state’s unquestioned right to involuntarily commit sex …

The Scope Of The General Utilities Repeal, Don Leatherman

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More than a quarter of a century ago, Congress repealed the General Utilities doctrine, authorizing Treasury to issue regulations to prevent circumvention of the repeal. Although Treasury has issued several sets of regulations in response, it has never systematically defined the scope of the repeal. Instead, the regulations and other administrative guidance more selectively attack concerns raised by the repeal, almost all of which arise because of the dual nature of stock: A corporate shareholder can choose to treat a subsidiary’s stock as a separate asset or, in certain cases, as an indirect interest in subsidiary assets, a choice facilitated …

A Survey Of The Section 336(E) Regulations, Don Leatherman

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Under § 336(e), if one corporation owns an affiliated interest in the stock of a second corporation and sells, exchanges, or distributes all of that stock, Congress has authorized a regulatory election to treat the transfer of the second corporation’s stock as a disposition of its assets, thereby avoiding recognized gain or loss on the sale, exchange, or distribution of that stock. Congress added § 336(e) to the Code in the Tax Reform Act of 1986, intending that it be implemented using "principles similar to those of section 338(h)(10)." Thus, § 336(e) has a purpose similar to § 338(h)(10), offering …

Sexual Violence Against Men And Women In War: A Masculinities Approach, Valorie K. Vojdik

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Rape and sexual violence against men in war remains largely invisible, yet pervasive across time and place. The silence around male rape raises critical questions about male bodies, gender, and power that have been largely ignored by legal scholars and international courts. While feminist and human rights scholars have theorized rape of women as a weapon of war, they have largely ignored sexual violence against men. Following the mass rape of women in former Yugoslavia and Rwanda, international tribunals recognized that sexual violence against women can constitute a weapon of war and a crime against humanity. In both conflicts, men …

A Glass Half Full Look At The Changes In The American Legal Market, Benjamin H. Barton

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The American legal profession finds itself in the midst of dizzying changes. What was once viewed as a brief downturn now looks like a much more substantial restructuring and downsizing. The main commentators on these trends have been those most likely to be affected: law professors and corporate lawyers, and they have largely presented these trends as disastrous. This Essay argues that while these changes will be painful in the near term, they will prove beneficial overall.

The obvious reason for optimism is that America will be significantly better off if we spend less on legal services. Whatever else the …

Diminishing Retaliation Liability, Alex B. Long

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No abstract provided.

The Laws Of Spaceflight: A Guidebook For New Space Lawyers, Glenn Harlan Reynolds

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No abstract provided.

Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum

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Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is …

The New Intermediary On The Block: Funding Portals Under The Crowdfund Act, Joan Macleod Heminway

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The CROWDFUND Act, part of the JOBS Act signed into law in the United States in April 2012, provides for a new registered securities intermediary known as a funding portal. Funding portals or registered brokers must participate in crowdfunded offerings of securities conducted in accordance with the new federal offering registration exemption created in the CROWDFUND Act. Although regulations are forthcoming that will further illuminate the structure and function of funding portals, the CROWDFUND Act itself offers some insights into the role of funding portals in securities crowdfunding and allows for preliminary observations about legal issues inherent in funding portal …

The Legal Reader: An Exposé, Michael J. Higdon

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John Steinbeck once said, “Your audience is one single reader. I have found that sometimes it helps to pick out the person — a real person you know, or an imagined person — and write to that one.” For legal writers, however, this advice is somewhat difficult to follow as their documents are likely to be read by many different kinds of audience members. In this Article, however, I mean to focus specifically on one particular kind of reader: the legally-trained reader or, more simply, the legal reader. After all, the majority of lawyers will find themselves communicating most often …

Should Competition Policy Promote Happiness?, Maurice Stucke

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What, if anything, are the implications of the happiness economics literature on competition policy? This Paper first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well-being. The Paper next surveys the happiness literature on five key issues: (i) What constitutes well-being; (ii) How do you measure well-being; (iii) What increases well-being; (iv) Do people want to be happy; and (v) Can and should the government promote total well-being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or …

A Response To Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods Of Competition, Maurice Stucke

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Federal Trade Commissioner Joshua Wright recently proposed a new legal standard to evaluate “unfair methods of competition” under Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45(a) (2012).

This essay raises several concerns. First, Wright’s proposed legal standard does not go as far as Congress intended. Moreover it conflates unfair methods of competition with acts and practices that significantly harm consumer welfare. A second concern is that the proposed legal standard goes the other direction and permits conduct that is otherwise illegal under the Sherman and Clayton Acts. Third, the proposed standard reduces accuracy, is hard to administer …

Technology's Triple Threat To The Attorney-Client Privilege, Paula Schaefer

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Three issues – volume of recorded communications, ease of dissemination, and lack of knowledge – are today’s primary technology-related threats to the attorney-client privilege. Generally speaking, attorney-client communications must be kept confidential to retain their privileged status. In the information age, the volume of recorded attorney-client communications and ease of their dissemination makes it more difficult than ever to protect against disclosure. Whether that disclosure is intentional or inadvertent, it can result in privilege waiver.

While some perceive that a gap in attorney knowledge about technology is a major threat to the privilege, that does not appear to be the …

The Marshall Hypothesis And The Rise Of Anti-Death Penalty Judges, Dwight Aarons

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No abstract provided.

Looking At The Monopsony In The Mirror, Maurice Stucke

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Although still a distant second to monopoly, buyer power and monopsony are hot topics in the antitrust community. Despite the increasing interest in monopsony and buyer power, relatively few cases have actually been brought. Given the relatively few antitrust cases, the legal standards for monopsony claims are less developed than for monopoly claims. In recent years, courts, competition agencies, and scholars in addressing monopsony begin with a simple premise: monopsony is the mirror image of monopoly. But as this Article contends, courts and agencies should be careful when importing monopolization standards for monopsony cases. What works for monopolization claims may …

How To Stop Worrying And Learn To Love The Second Amendment: A Reply To Professor Magarian, Glenn Harlan Reynolds

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In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Texas Law Review 49, 53-72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such …

Tort Liability For Parents Who Choose Not To Vaccinate Their Children And Whose Unvaccinated Children Infect Others, Teri Dobbins Baxter

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This article explores whether parents can or should be civilly liable for damages when (1) their unvaccinated child contracts a disease that would have been prevented by an available and recommended vaccine, and (2) those children infect others who were either vaccinated (but who failed to develop immunity despite the vaccination) or were unable to be vaccinated because of their age or other medical conditions. In the past, concerns about establishing causation have discouraged discussions about liability. However, in several recent cases public health officials have been able to identify the source of outbreaks. Furthermore, outbreaks of diseases that had …

Ham Sandwich Nation: Due Process When Everything Is A Crime, Glenn Harlan Reynolds

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Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

Mandating Precontractual Disclosure, Eric Franklin Amarante

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Parties negotiating an arm’s length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: a harm is identified in a certain transaction’s precontractual period and disclosure is mandated to rectify the harm. These …

A New Perspective On Judicial Disqualification: An Antidote To The Effects Of The Decisions In White And Citizens United, Penny White

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No abstract provided.

Use Of Dominance, Unlawful Conduct, And Causation Under Section 36 Of The New Zealand Commerce Act: A U.S. Perspective, Maurice Stucke

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The proper interpretation of the abuse of dominance provisions in Section 36 of the New Zealand Commerce Act has been a matter of controversy. The courts of New Zealand have taken a view of the requirements of this important provision of competition law in a narrow and formal manner that makes it very difficult to take enforcement action against conduct which has a net anticompetitive effect, but which has no, or at best minimal, business or procompetitive justification. We offer this white paper to provide a United States perspective to suggest that the current counterfactual test applied by the courts …

Teaching Business Associations Law In The Evolving New Market Economy, Joan Macleod Heminway

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Over the past ten years, the doctrinal rules governing business associations have become more complex (with, e.g., the addition of significant federal law on corporate governance and corporate finance and the recent enactment of social enterprise forms of entity). Moreover, a number of us have added experiential learning to the business associations course (or another similarly titled foundational course on business entity law) and have increased the number and types of assessment tools used in our business associations pedagogy. This has made the task of teaching business associations somewhat overwhelming.

Law faculty respond to the challenges of teaching introductory business …

To Be Or Not To Be (A Security): Funding For-Profit Social Enterprises, Joan Macleod Heminway

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This article explores the federal securities law status of financial interests in for-profit social enterprise entities. When analyzed through the lens of the Securities Act of 1933 and the Securities Exchange Act of 1934, financial interests in social enterprise businesses raise both concerns and opportunities. Ultimately, the federal securities regulation status of interests in for-profit social enterprise ventures is important for choice-of-entity reasons (since the regulatory framework may impose different costs on interests in different structural business forms), for capital-structuring reasons within individual forms of entity, and for risk-management reasons at the entity level. In addition, an inquiry into the …

A Place In The Academy: Law Faculty Hiring And Socioeconomic Bias, Michael J. Higdon

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In the movie Moneyball — based on the nationally bestselling book of the same name — Jonah Hill’s character, Peter Brand remarks, “People are overlooked for a variety of biased reasons and perceived flaws.” Although his character was referring to baseball players, the same could be said of those who attempt to secure jobs as law professors. In fact, many law students are later surprised to learn that their ability to secure a job as a law professor has much less to do with what they have might have done during their legal careers, and more to do with simply …