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Full-Text Articles in Law

The Methodology Of Comparative Law, Edward J. Eberle Jan 2011

The Methodology Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.


The Architecture Of First Amendment Free Speech, Edward J. Eberle Jan 2011

The Architecture Of First Amendment Free Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.


Center On Urban Environmental Law (Cuel) Brochure, Alan Ramo Jan 2011

Center On Urban Environmental Law (Cuel) Brochure, Alan Ramo

Environmental Law and Justice Clinic

No abstract provided.


Regulating Money Creation After The Crisis, Morgan Ricks Jan 2011

Regulating Money Creation After The Crisis, Morgan Ricks

Vanderbilt Law School Faculty Publications

Like bank deposits, money market instruments function in important ways as "money." Yet our financial regulatory regime does not take this proposition seriously. The (non-government) issuers of money market instruments-almost all of which are financial firms, not commercial or industrial ones-perform an invaluable economic function. Like depository banks, they channel economic agents' transaction reserves into the capital markets. These firms thereby reduce borrowing costs and expand credit availability. However, this activity- "maturity transformation "-presents a problem. When these issuers default on their money market obligations, they generate adverse monetary consequences. This circumstance amounts to a market failure, creating a "prima ...


Winning Through Losing, Douglas Nejaime Jan 2011

Winning Through Losing, Douglas Nejaime

Faculty Scholarship Series

This Article locates the productive function of litigation loss in social movements. Departing from previous sociolegal scholarship, which largely centers on the positive possibilities of litigation process and victory, this Article identifies social movement effects rooted in the unique attributes of litigation loss. In doing so, it draws on the specific limitations of litigation identified in more pessimistic accounts of court-centered reform, but reconfigures those limitations within a multilayered, dynamic framework of law and social change. Even as my contribution fills a significant gap-the inattention to loss and its aftermath-in the legal mobilization and cause lawyering literature, I rely on ...


A Former Treasury Adviser On How To Really Fix Wall Street, Morgan Ricks Jan 2011

A Former Treasury Adviser On How To Really Fix Wall Street, Morgan Ricks

Vanderbilt Law School Faculty Publications

Any serious program for Wall Street reform should start with two words: “term out.” “Terming out” is a financial term of art, but its meaning is easily grasped. It simply means funding your business with long-term financing instead of short-term IOUs. To a far greater extent than is commonly understood, our financial sector funds its operations with extremely short-term borrowings. These IOUs must be paid back in a day, a week, or a month. By contrast, termed-out financial firms shun borrowings that come due in less than a year. A terming-out requirement would be costly for Wall Street, but the ...


Policing In The United States: Balancing Crime Fighting And Legal Rights, John Eterno Ph.D. Jan 2011

Policing In The United States: Balancing Crime Fighting And Legal Rights, John Eterno Ph.D.

Faculty Works: Criminal Justice and Legal Studies

Policing in any nation is an inextricable and essential aspect of the existing government. The government of the United States is an elected democracy. It is a tripartite system including legislative, executive, and judicial branches. Essentially, the legislature creates the laws, the executive is charged with enforcing laws, and the judiciary interprets the laws. At the federal level these branches are the president, Congress, and federal courts (the highest court being the United States Supreme Court). Because the founding fathers of the U.S. (the authors and supporters of the Constitution of the United States) feared tyranny, no branch of ...


Lobbying As The New Campaign Finance, Heather K. Gerken Jan 2011

Lobbying As The New Campaign Finance, Heather K. Gerken

Faculty Scholarship Series

I want to talk a little bit about the future of campaign finance reform and the future of campaign finance scholarship in the wake of Citizens United. Here I am going to draw upon my own work and the work of some of the folks in this room, including Richard Briffault and Rick Hasen, so please imagine a properly footnoted law review article scrolling behind me. I want to make three points. First, I will argue that Citizens United has cut off most of the traditional pathways for campaign finance reform. Second, I want to talk about the new directions ...


Suing Government Lawyers For Giving Dubious Legal Advice In A National Security Crisis: Notes On How (Not) To Become A Banana Republic, Peter Schuck Jan 2011

Suing Government Lawyers For Giving Dubious Legal Advice In A National Security Crisis: Notes On How (Not) To Become A Banana Republic, Peter Schuck

Faculty Scholarship Series

I describe myself as a "militant moderate." Among other things, this means that I am not given to alarmist, hyperbolic, or rhetorical heat of any kind; cool understatement is more to my liking. So why do I subtitle this essay "Notes on How (Not) to Become a Banana Republic"? It will strike some listeners as inflammatory, the product of a fevered imagination. I plead guilty only to hyperbole, a time-honored rhetorical device.


Beyond Presentism: A Comment On Stuart Chinn’S Race, The Supreme Court, And The Judicial Institutional Interest In Stability, Bruce Ackerman Jan 2011

Beyond Presentism: A Comment On Stuart Chinn’S Race, The Supreme Court, And The Judicial Institutional Interest In Stability, Bruce Ackerman

Faculty Scholarship Series

The spirit of presentism haunts constitutional scholarship. The key debate tries to identify those aspects of present-day realities which drive constitutional change – a shift in social mores, the rise of social movements, a change in party balance, or simply the death and replacement of justices.

Chinn moves beyond presentism, without disputing its undoubted importance. For him, the Court’s work also represents an ongoing and self-conscious effort to synthesize past principles into a constitutional order that makes sense to Americans of the present and future.


Regulation In The Behavioral Era, Lisa Schultz Bressman, Michael P. Vandenbergh, Amanda R. Carrico Jan 2011

Regulation In The Behavioral Era, Lisa Schultz Bressman, Michael P. Vandenbergh, Amanda R. Carrico

Vanderbilt Law School Faculty Publications

Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for responses that depart from common sense and common wisdom, reflecting predictable cognitive anomalies. Furthermore, political officials have now called for behavioral economics to play an explicit role in White House review of agency regulations. This is a significant development for the regulatory process, yet our understanding of how behavioral insights should alter regulatory analysis is incomplete. To account ...


Imaginary Threats To Government's Expressive Interests, Helen Norton Jan 2011

Imaginary Threats To Government's Expressive Interests, Helen Norton

Articles

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten the government ...


The Equal Protection Implications Of Government's Hateful Speech, Helen Norton Jan 2011

The Equal Protection Implications Of Government's Hateful Speech, Helen Norton

Articles

Under what circumstances should we understand government's racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties' discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court's government speech doctrine--which to date has emphasized the value of government ...


Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton Jan 2011

Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton

Articles

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the ...


Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White Jan 2011

Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White

Articles

The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of "industrial terrorism." Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations ...


Convergences And Divergences In International Legal Norms On Migrant Labor, Chantal Thomas Jan 2011

Convergences And Divergences In International Legal Norms On Migrant Labor, Chantal Thomas

Cornell Law Faculty Publications

This essay will argue that even where disparate treaties converge doctrinally, they may diverge normatively and that normative divergence may be significant in its own right. Section I of this essay seeks to chart out an initial such analysis, conducting a concise comparison of particular rules affecting migrant workers from different realms of international law. Section I concludes with both a graphic representation of doctrinal convergences and divergences, and a further discussion the doctrinal relationships among treaties as elucidated through consideration of hypothetical legal disputes.

Section II considers the normative implications of divergent rule systems. In particular, Section II raises ...


Wall Street As Community Of Fate: Toward Financial Industry Self-Regulation, Saule T. Omarova Jan 2011

Wall Street As Community Of Fate: Toward Financial Industry Self-Regulation, Saule T. Omarova

Cornell Law Faculty Publications

This Article proposes an approach to regulatory design that aims to create structural incentives for the emergence of a new model of embedded self-regulation in the financial industry. Without a doubt, the ideas laid out in this Article are more of a thought experiment than a polished set of fully developed regulatory proposals. These ideas and suggestions need a great deal of additional thought and a deeper, more granular and rigorous analysis of their potential consequences, benefits, and costs. Moreover, this Article explores only how to create conditions conducive to the emergence of comprehensive industry self-regulation that is embedded in ...


The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain Jan 2011

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.


Sandbagging: Default Rules And Acquisition Agreements, Charles K. Whitehead Jan 2011

Sandbagging: Default Rules And Acquisition Agreements, Charles K. Whitehead

Cornell Law Faculty Publications

In the M&A world, a buyer "sandbags" a seller when, knowing the seller has materially breached a warranty, it closes the deal and then asserts a post-closing claim. Traditionally, the buyer must have relied on the warranty, without knowledge of the breach, in order to prevail. The modern trend, with some exceptions, permits the buyer to sue without regard to knowledge. Parties, in both cases, can contract around the default rule--so that the default rule should affect how acquisition agreements are structured. Yet, a survey of publicly available deals, from July 2007 to June 2011, reveals that--regardless of default ...


The Power Of Definition: Brazil's Contribution To Universal Concepts Of Indigeneity, Jan Hoffman French Jan 2011

The Power Of Definition: Brazil's Contribution To Universal Concepts Of Indigeneity, Jan Hoffman French

Sociology and Anthropology Faculty Publications

This article builds on discussions about the potential benefits and difficulties with developing a universal definition of indigenous peoples. It explores the spaces made available for theorizing indigeneity by the lack of a definition in the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007. Specifically, this article addresses the challenge presented by the diversity of groups claiming indigenous status in Brazil. To what extent do distinct cosmologies and languages that mark Amazonian Indians as unquestionably indigenous affect newly recognized tribes in the rest of Brazil who share none of the indicia of authenticity? This article theorizes ...


Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke Jan 2011

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of ...


Amicus Briefs And The Sherman Act: Why Antitrust Needs A New Deal, Rebecca Haw Allensworth Jan 2011

Amicus Briefs And The Sherman Act: Why Antitrust Needs A New Deal, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Power to interpret the Sherman Act, and thus power to make broad changes to antitrust policy, is currently vested in the Supreme Court. But reevaluation of existing competition rules requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which it lacks. To compensate for these deficiencies, the Court has turned to amicus briefs to supply the economic information and reasoning behind its recent changes to antitrust policy. This Article argues that such reliance on amicus briefs makes Supreme Court antitrust adjudication analogous to administrative notice-and-comment rulemaking. When the Court pays careful attention to economic ...


Outsourcing Modularity, And The Theory Of The Firm, Margaret M. Blair, Erin O'Hara O'Connor, Gregg Kirchhoefer Jan 2011

Outsourcing Modularity, And The Theory Of The Firm, Margaret M. Blair, Erin O'Hara O'Connor, Gregg Kirchhoefer

Vanderbilt Law School Faculty Publications

Firms have increasingly moved productive activities from within to outside the firm through outsourcing arrangements. According to some estimates, the value of outsourcing contracts has been nearly 100 billion dollars per year since 2004. Firm outsourcing happens for a number of reasons, including to save labor costs, capture the benefits of regulatory arbitrage, and take advantage of economies of scale in the provision of firm needs. We review a number of outsourcing contracts for evidence that contract techniques are used to help modularize the relationship between the firm and its service provider. Consistent with what modularity theory might predict, some ...


Outsourcing, Modularity, And The Theory Of The Firm, Erin O'Connor, Gregg Kirchhoefer, Margaret M. Blair Jan 2011

Outsourcing, Modularity, And The Theory Of The Firm, Erin O'Connor, Gregg Kirchhoefer, Margaret M. Blair

Vanderbilt Law School Faculty Publications

Firms have increasingly moved productive activities from within to outside the firm through outsourcing arrangements. According to some estimates, the value of outsourcing contracts has been nearly 100 billion dollars per year since 2004. Firm outsourcing happens for a number of reasons, including to save labor costs, capture the benefits of regulatory arbitrage, and take advantage of economies of scale in the provision of firm needs. We review a number of outsourcing contracts for evidence that contract techniques are used to help modularize the relationship between the firm and its service provider. Consistent with what modularity theory might predict, some ...


Book Review. Degradation: What The History Of Obscenity Tells Us About Hate Speech By Kevin W. Saunders, Jeannine Bell Jan 2011

Book Review. Degradation: What The History Of Obscenity Tells Us About Hate Speech By Kevin W. Saunders, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.


Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui Jan 2011

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

Faculty Publications

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. This article examines why the Japanese Supreme Court ...


Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram Jan 2011

Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram

Faculty Scholarship

No abstract provided.


In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks Jan 2011

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Articles

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative ...


Keeping Republics Republican, Rob Atkinson Jan 2011

Keeping Republics Republican, Rob Atkinson

Scholarly Publications

No abstract provided.


The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions--For The Law And For The Litigants, Scott A. Moss Jan 2011

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions--For The Law And For The Litigants, Scott A. Moss

Articles

Each of the Supreme Court's high school student speech cases reflected the social angst of its era. In 1965's Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality ...