Law Commons^™

Beyond Incentives: Making Corporate Whistleblowing Moral In The New Era Of Dodd-Frank Act "Bounty Hunting", Matt A. Vega

Matt A Vega

In this article, I examine the SEC's new whistleblower bounty program authorized by the Dodd-Frank Act. Under the program, which went into effect last year, the SEC is required to pay a bounty to whistleblowers who voluntarily provide the agency with "original information" about a potential securities law violation that leads to a successful SEC or "related" enforcement action and that results in monetary sanctions of sufficient size. When the average SEC settlement is over $18.3 million, whistleblowers can expect the average bounty to be well in the range of $2-5 million.

My contention is that this new program is …

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

A Paradox In Employment: The Contradiction That Exists Between Immigration Laws And Outsourcing Practices, And Its Impact On The Legal And Illegal Minority Working Classes, Mary O'Sullivan

Mary T O'Sullivan

The drastic distinctions between the United States’ immigration and outsourcing policies have created a system where American companies are able to send unlimited jobs overseas, yet, have very restricted ability to bring workers to domestic offices and factories. Restrictive immigration policies seek to protect American jobs, while liberal outsourcing regulations permit, and encourage, employers to send jobs outside of the United States. As a result, the United States’ outsourcing policy sabotages the purpose of American immigration laws. The uncertainty of the contradiction between immigration and outsourcing policy may be the cause of unusually high unemployment numbers, particularly in the minority …

Early Childhood Education: An Ignored Solution To The Achievment Gap In The United States, Mary T. O'Sullivan

Mary T O'Sullivan

This paper will attempt to analyze the conundrum of how the United States, with its educational goal of decreasing the achievement gap, fails to implement early childhood education, an undisputed determent factor of academic achievement. Through looking at the undisputed contentions in educational policy and the current state of U.S. public school education, this paper will attempt to highlight the disconnect between educational research and implementation, and will outline possible remedies.

Caught In The Cross-Fire: The Psychological And Emotional Impact Of The Individuals With Disabilities Education Act (Idea) Upon Teachers Of Children With Disabilities, A Therapeutic Jurisprudence Analysis, Richard Peterson

Richard Peterson

This paper addresses the psychological and emotional consequences of the Individuals with Disabilities Education Act (IDEA) for public school teachers in the United States as viewed through the lens of Therapeutic Jurisprudence.

Therapeutic Jurisprudence was founded in the 1990s as an interdisciplinary approach to evaluating how law acts as a therapeutic agent upon those who engage in its context. It calls for the study of such consequences to ascertain whether the law’s anti-therapeutic effects can be lessened, and its therapeutic effects increased, without subordinating due process and other values associated with justice. In the context of Special Education Law, for …

Road Rules And Rights: The Irreconcilable Pursuits Of Adolescent Life, Liberty, . . . And Licensure, Vivian E. Hamilton

Vivian E. Hamilton

The Future Of Same-Sex Marriage In California, Elizabeth Hollis

Elizabeth Hollis

This article will discuss in detail the issues relating to the rights of same-sex couples wishing to get married in California. First the article examines the history of same-sex marriage in California prior to the most recent Perry v. Brown ruling. The article then focuses on the named plaintiffs in this case, concentrating particularly on their history and how they became involved in the case. Next, the litigation process of Perry v. Brown and the recent decision handed down by Circuit Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit will be reviewed. Finally, the …

I Wanna Marry You: An Empirical Analysis Of The Distraction And Irrelevancy Of Doma, Deirdre M. Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Torture Warrants, Necessity, And Self-Defense, Fritz Allhoff

Fritz Allhoff

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of offering ex ante, as opposed to ex post, authorization; arguments for and against either approach are considered. While there has been some legal scholarship in relation to torture warrants, less has been said about ex post justifications. This article ultimately defends the appropriateness of the necessity defense …

Empirical Objections To Torture: A Critical Reply, Fritz Allhoff

Fritz Allhoff

Those who support torture in ticking-time-bomb cases are often criticized as failing to consider empirical objections to torture; however, torture’s critics often wield this charge uncritically, doing little more than throwing out platitudes without considering the role of those platitudes in the dialectic. I agree with the critics that more empirical engagement is owed than is typically on offer, but deny that such engagement vindicates their position. This essay therefore considers various stock objections to the actual use of torture, while ultimately arguing that those objections fail to undermine the use of torture in exceptional cases. In particular, we will …

Bringing Down A Legend: How Pennsylvania’S Investigating Grand Jury Ended Joe Paterno’S Career, Brian Gallini

Brian Gallini

Risk Based Student Loans, Michael Simkovic

Michael N Simkovic

Credit markets serve a vital function in capitalist economies: evaluating the riskiness of a range of possible investments and channeling resources toward those investments that investors believe are most likely to prove successful. This process is known as the “risk-based pricing” of credit. Ideally, risk-based pricing should lead to lower cost of capital for lower risk investment choices with larger rewards, and therefore more investment in such promising activities. Conversely, risk-based pricing should lead to higher costs of capital, and therefore less investment, in high-risk activities with relatively low rewards. If creditors are well informed and analytic, and borrowers respond …

Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff

Abigail R. Moncrieff

There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …

Performing Property, Making The World, Nicholas K. Blomley

Nicholas K Blomley

Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.

However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through …

Politics As Usual: Black Stereotypes And President Obama's Racialization, Lynnette Jenkins

Lynnette R Jenkins

President Barack Obama attempted to transcend race by running a colorblind campaign and administration. Nevertheless, the President and First Lady Michelle Obama have been racialized by media as the result of stereotyping and white supremacy. This paper will demonstrate that racism is not a relic of the past by drawing parallels between previous racist imagery and current media depictions of Barack and Michelle Obama.

Adr’S Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

The Dog That Didn't Bark: Private Investment Funds And Relational Contracts In The Wake Of The Great Recession, Robert Illig

Robert C Illig

In the aftermath of the subprime mortgage crisis, the contract rights of numerous hedge funds and venture capital funds were breached. These contracts were complex and sophisticated and had been negotiated at great time and expense. Yet despite all of the assumptions of neo-classical contracts theory, nothing happened. Practically none of these injured parties sued to enforce their rights. Professor Illig uses this dearth of litigation to conduct a form of natural experiment as to the value of contract law. Discrete market participants contracted before the crash and then pursued their rights in court afterwards, while relational market participants contracted …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

César F. Rosado Marzán

Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Not All Defined Value Clauses Are Equal, Wendy Gerzog

Wendy Gerzog

Defined value clauses used to value nonmarketable family limited partnership (FLP) interests create valuation distortions and other public policy issues. This paper describes these abuses and proposes the employment of restrictions similar to those applied to pecuniary formula marital deduction clauses.

The article explains how pecuniary formula marital deduction provisions created valuation distortions by allowing for undervaluation of the marital share that were remedied by the IRS’s Rev. Proc. 64-19 and the enactment of section 2056(b)(10). The article analyzes recent case law expanding the use of defined value clauses into the FLP area and criticizes the courts for not applying …

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Michael L. Perlin

Michael L Perlin

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

Abstract

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the …

Book Review: Stacey Steele And Kathryn Taylor, Eds., Legal Education In Asia: Globalization, Change And Contexts, Carole Silver

Carole Silver

U.S. legal education is under fire from all sides. Travel outside of the U.S., however, and the U.S. often is a model for reform efforts, even the standard against which legal education programs in much of the rest of the world measure themselves. In Legal Education in Asia, Stacey Steele, Kathryn Taylor and their co-authors offer insight into globalization’s influence on legal education. They find that globalization has sharpened the peripheral vision of reformers by encouraging them to consider the approaches followed elsewhere to educating lawyers as well as the role lawyers play in society. Their analysis also identifies the …

A Business Lawyer's Bibliography: Books Every Dealmaker Should Read, Robert C. Illig

Robert C Illig

To become a truly great business lawyer, one must not only master legal analysis and deal execution. One must attain a command of context. Attorneys are more than mere “transaction cost engineers.” We are counselors – purveyors of judgment, caution and insight. But how best to cultivate such expertise? Wisdom is the reward of experience, and requires time to develop. How, then, can the young lawyer hasten her education and achieve an understanding beyond her years? And what of the seasoned professional who lacks expertise in a particular field? How is she to obtain a broader familiarity without re-living her …

Conference: Reparations In The Inter-American System: A Comparative Approach Conference, Ignacio Alvarez, Carlos Ayala, David Baluarte, Agustina Del Campo, Santiago A. Canton, Dean Claudio Grossman, Darren Hutchinson, Pablo Jacoby, Viviana Krsticevic, Elizabeth Abi-Mershed, Fernanda Nicola, Diego Rodríguez-Pinzón, Francisco Quintana, Sergio Garcia Ramirez, Alice Riener, Frank La Rue, Dinah Shelton, Ingrid Nifosi Sutton, Armstrong Wiggins

Darren L Hutchinson

This publication will enhance the understanding of what we call the law of reparations, developed in the Inter-American Court and Commission of Human Rights. Reparations have a special meaning for the victims of human rights violations and, in particular, the victims of mass and gross violations that took place in this hemisphere during the twentieth century. For those victims and their family members, reestablishing the rights as if no violation had occurred is not possible. Accordingly, to them, avoiding the repetition of those violations in the future is of paramount importance. In achieving that goal, what the victims want is …

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

Darren L Hutchinson

No abstract provided.

Copyright And Moral Norms, Alina Ng

Alina Ng

The role normative principles such as morality and ethics play in a legal system is a highly contentious point in jurisprudence and legal theory. Scholars and philosophers have often disagreed on whether laws should reflect and incorporate moral and ethical norms. The idea that there could be a necessary connection between law and objective morality has been forthrightly rejected by some jurists because of the heterogeneity of social views and beliefs about what is right and wrong conduct. This paper challenges the assertion by legal positivism that morality cannot be incorporated into legal analysis because they obfuscate analytical thinking about …