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Articles 1 - 30 of 50
Full-Text Articles in Law
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
Scholarly Articles
The third branch of our federal government has traditionally been viewed as the least of the three in terms of the scope of its power and authority. This view finds validation when one considers the extensive authority that Congress has been permitted to exercise over the Federal Judiciary. From the beginning, Congress has understood itself to possess the authority to limit the jurisdiction of inferior federal courts. The Supreme Court has acquiesced to this understanding of congressional authority without much thought or explanation.
It may be possible, however, to imagine a more robust vision of the Judicial Power through closer …
The Case Against An International Cyber Warfare Convention, Lawrence L. Muir Jr.
The Case Against An International Cyber Warfare Convention, Lawrence L. Muir Jr.
Scholarly Articles
None available.
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Scholarly Articles
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan D. Franck
The Icsid Effect? Considering Potential Variations In Arbitration Awards, Susan D. Franck
Scholarly Articles
The legitimacy of the World Bank's dispute resolution body - The International Centre for the Settlement of Investment Disputes (ICSID) - is a matter of heated debate. Some states have alleged that ICSID is biased, withdrawn from the ICSID Convention, and advocated creating alternative arbitration systems. Using pre-2007 archival data of the population of then- known arbitration awards, this Article quantitatively assesses whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The Article examines variation in the amounts claimed and outcomes reached to evaluate indicators of bias. The results indicated that there was no reliable …
Missionaries To The Wilderness: A History Of Land, Identity, And Moral Geography In Appalachia, Jill M. Fraley
Missionaries To The Wilderness: A History Of Land, Identity, And Moral Geography In Appalachia, Jill M. Fraley
Scholarly Articles
This article revisits the relationship between missionaries and Appalachian stereotypes, bringing to the discussion new developments in geographical theory and the intellectual history of ideas of wilderness. The article argues that missionary activities during the early twentieth century are best understood through their beliefs about wilderness and particularly about the moral climate of man within it. In this way the missionaries also contributed to the process of intermingling ideas about the land and the people and thereby contributed to the formation of a quasi-ethnic regional identity in the American public consciousness—and also substantially changed Appalachia by applying a set of …
Sense And Sensibility In Mandatory Minimum Sentencing, Erik Luna, Paul G. Cassell
Sense And Sensibility In Mandatory Minimum Sentencing, Erik Luna, Paul G. Cassell
Scholarly Articles
Not available.
Good Faith In Revlon-Land, Christopher M. Bruner
Good Faith In Revlon-Land, Christopher M. Bruner
Scholarly Articles
The Delaware Supreme Court has set a very high hurdle for plaintiffs challenging directors' good faith in the sale of a company. In Lyondell Chemical Company v. Ryan, the court held that unconflicted directors could be found to have breached the good faith component of their duty of loyalty in the transactional context only if they "knowingly and completely failed to undertake," and "utterly failed to attempt" to discharge their duties.
In this essay I argue that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context — a move clearly aimed …
Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner
Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner
Scholarly Articles
Over recent decades, shareholders in public corporations have increasingly sought to augment their own power – and, correlatively, to limit the power of boards – through creative use of corporate bylaws. The bylaws lend themselves to such efforts because enacting, amending, and repealing bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine the contested nature of bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding the scope of the shareholders' bylaw …
Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner
Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner
Scholarly Articles
In this article I argue that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided, and offer an explanation of why policymakers in each country have reacted to the financial crisis as they have. I first discuss the risk incentives of shareholders and managers in financial firms, and examine how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. I then describe the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts, and explore historical and …
Debarring Faithless Corporate And Religious Fiduciaries In Bankruptcy, Lyman P.Q. Johnson
Debarring Faithless Corporate And Religious Fiduciaries In Bankruptcy, Lyman P.Q. Johnson
Scholarly Articles
Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” …
Reality Check On Officer Liability, Lyman P.Q. Johnson
Reality Check On Officer Liability, Lyman P.Q. Johnson
Scholarly Articles
This article addresses the fiduciary duties of corporate officers. Responding to a critique that recent scholarly analyses of officers depart from reality, it argues that, on a variety of grounds, those analyses are more realistic than the critique and provide doctrinal coherence and advance the goal of meaningful executive accountability. The divergent governance functions of directing versus managing are described and it is argued that those disparate roles should matter for fiduciary duty analysis. No great outbreak of litigation should be expected if officers are held to a stricter duty of care than directors because boards of directors, not courts, …
Enduring Equity In The Close Corporation, Lyman P.Q. Johnson
Enduring Equity In The Close Corporation, Lyman P.Q. Johnson
Scholarly Articles
This Article develops the theme of change/sameness in corporate law. Written to commemorate the thirty-fifth anniversary of Wilkes v. Springside Nursing Home, Inc., the Article argues that the equitable fiduciary duties so central to Wilkes endure today in the close corporation precisely because equity, by its nature, is so exquisitely adaptive – under constantly changing circumstances − to the ongoing pursuit of a just ordering within the corporation. Unlike fixed legal rules – which are categorical, static, and do not take sufficient account of changes wrought by time or human arationality – equity is malleable and timely as it reckons …
Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson
Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson
Scholarly Articles
Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5, …
Two Models Of Corporate Social Responsibility, David K. Millon
Two Models Of Corporate Social Responsibility, David K. Millon
Scholarly Articles
The article discusses the two perspectives of corporate social responsibility (CSR). It states that the constituency model of CSR focus on the constituent elements of the company including shareholders, senior management, and employees. It mentions that the sustainability approach to CSR focus on the external relationships as well as the long-run sustainability of the company.
The Changing Face Of Money, Christopher M. Bruner
The Changing Face Of Money, Christopher M. Bruner
Scholarly Articles
In this essay I argue that widespread failure to comprehend the intrinsic nature of modern money loomed large in the recent financial and economic crisis, and that broader comprehension of its meaning is a precondition for effective post-crisis reforms. First, I provide a brief history of money, emphasizing its gradual divergence from inherent value. I then consider the value of today's dollar in economic, legal, and psychological terms, arguing that each perspective conveys a single over-arching lesson - that better comprehending our money requires better comprehending ourselves. The introspection that this exercise demands reveals with unique clarity some of the …
Delaware's Non-Waivable Duties, Lyman P. Q. Johnson
Delaware's Non-Waivable Duties, Lyman P. Q. Johnson
Scholarly Articles
This Article disputes the view - seemingly settled among scholars, judges, and lawyers - that recently - enacted statutes in Delaware legally permit fiduciary duties to be waived in noncorporate business associations. The argument is a rarity in business law because it is a constitutional argument, not one initially based on policy considerations or statutory interpretation, and it seeks to harmonize judicial review of fiduciary duties in noncorporate businesses with that in Delaware corporations, where waivers are not permitted. Delaware’s Constitution vests the Delaware Court of Chancery with general equity jurisdiction and powers of a kind that cannot be curtailed …
Culture, Dissent, And The State: The Example Of Commonwealth African Marriage Law, Johanna E. Bond
Culture, Dissent, And The State: The Example Of Commonwealth African Marriage Law, Johanna E. Bond
Scholarly Articles
This is an explosive time for those seeking to define the meaning and parameters of marriage. The subject has generated heated debate worldwide. In June 2010, the European Court of Human Rights declined to extend marriage rights to a gay Austrian couple, but the Court carefully laid the foundation for the recognition of such rights when a European consensus on the issue emerges. In July 2010, Argentina extended to same-sex couples the right to marry, joining nine other countries that legally recognize same-sex couples' right to marry. In August 2010, a United States district judge struck down a California ban …
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley
Scholarly Articles
Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.
Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another? (A Roundtable Discussion Of The Aba's Standards For Criminal Litigation), James E. Moliterno
Scholarly Articles
None available.
Modeling The American Lawyer Ethics System, James E. Moliterno
Modeling The American Lawyer Ethics System, James E. Moliterno
Scholarly Articles
None available.
Rationalizing Costs In Investment Treaty Arbitration, Susan D. Franck
Rationalizing Costs In Investment Treaty Arbitration, Susan D. Franck
Scholarly Articles
International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations - including the costs of lawyers for both sides, as well as administrative and tribunal expenses - are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification …
Beyond The Inevitable And Inadequate Regulation Of Bankers, Lyman P. Q. Johnson
Beyond The Inevitable And Inadequate Regulation Of Bankers, Lyman P. Q. Johnson
Scholarly Articles
None available.
The Real Constitutional Problem With The Affordable Care Act, Timothy Stoltzfus Jost
The Real Constitutional Problem With The Affordable Care Act, Timothy Stoltzfus Jost
Scholarly Articles
Not available.
Loopholes In The Affordable Care Act: Regulatory Gaps And Border Crossing Techniques And How To Address Them, Timothy Stoltzfus Jost
Loopholes In The Affordable Care Act: Regulatory Gaps And Border Crossing Techniques And How To Address Them, Timothy Stoltzfus Jost
Scholarly Articles
Not available.
Nexus Crystals: Crystallizing Limits On Contractual Control Of Virtual Worlds, Joshua A.T. Fairfield
Nexus Crystals: Crystallizing Limits On Contractual Control Of Virtual Worlds, Joshua A.T. Fairfield
Scholarly Articles
Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot.
The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …
Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson
Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson
Scholarly Articles
This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.
A Fine Line, Redefined: Moving Toward More Equitable Asylum Policies, Heather M. Kolinsky
A Fine Line, Redefined: Moving Toward More Equitable Asylum Policies, Heather M. Kolinsky
Scholarly Articles
This article is an exploration of the inequities that still remain in asylum claims, with particular reference to the experience of Chinese citizens seeking asylum and Cuban refugees.
Taking Away An Employer's Free Pass: Making The Case For A More Sophisticated Sex-Plus Analysis In Employment Discrimination Cases, Heather M. Kolinsky
Taking Away An Employer's Free Pass: Making The Case For A More Sophisticated Sex-Plus Analysis In Employment Discrimination Cases, Heather M. Kolinsky
Scholarly Articles
In this article the author advocates for a broader interpretation of sex-plus theory to encompass the concept of mother as a gender identified category.
Justice Hugo Black And His Law Clerks: Match-Making And Match Point, Todd C. Peppers
Justice Hugo Black And His Law Clerks: Match-Making And Match Point, Todd C. Peppers
Scholarly Articles
Like other Justices on the Supreme Court, Justice Black hired law clerks to assist with the work of the Court. Each year, his law clerks would assist in reviewing cert. petitions, doing legal research, and editing opinion drafts. These job duties, however, were only one dimension of the Black clerkship. As the Justice himself once remarked to a law-clerk applicant, “I don’t pick my law clerks for what they can do for me, I pick my law clerks for what I can do for them.”
Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather
Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather
Scholarly Articles
In this Essay, we identify and explore an additional institutional difficulty, which bridges these last two components of the proposed Act. Prior commentary has chronicled the phenomenon of Justices serving beyond the point at which they are able to perform their duties. It has also addressed the unique powers and responsibilities of the Chief Justice, with some arguing that the administrative aspects of the role should be divorced from the effectively life tenure associated with a position on the Court. We wish to highlight a connection. The unique powers and responsibilities of the center chair may make Chief Justices even …