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Articles 1 - 30 of 33
Full-Text Articles in Law
A Contractual Approach To Shareholder Oppression Law, Benjamin Means
A Contractual Approach To Shareholder Oppression Law, Benjamin Means
Faculty Publications
According to standard law and economics, minority shareholders in closely held corporations must bargain against opportunism by controlling shareholders before investing. Put simply, you made your bed, now you must lie in it. Yet most courts offer a remedy for shareholder oppression, often premised on the notion that controlling shareholders owe fiduciary duties to the minority or must honor the minority's reasonable expectations. Thus, law and economics, the dominant mode of corporate law scholarship, appears irreconcilably opposed to minority shareholder protection, a defining feature of the existing law of close corporations.
This Article contends that a more nuanced theory of …
Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black
Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black
Faculty Publications
The legal standard for race discrimination - the intent standard - has been scrutinized and justified for decades, but that conversation has occurred almost entirely within the legal community. Relatively little effort has been made to engage the public. This Article posits that the discussion of discrimination standards must account for and include public understandings of race and discrimination because race is a socially constructed concept and discrimination is culturally contingent. Race discrimination standards based solely upon the legal community’s perceptions are susceptible to significant flaws. This Article begins the incorporation of public understandings of race and discrimination by examining …
Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman
Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman
Faculty Publications
Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court's recent decision in Ricci v. DeStefano may signal a sea change for this disparate impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion also can be read to suggest a new affirmative defense for employers facing claims of disparate impact. Before Ricci, disparate impact was a purely no-fault doctrine. An employer was …
Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow
Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow
Faculty Publications
Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …
Empowerment, Innovation, And Service: Law School Programs Provide Access To Justice And Instill A Commitment To Serve, Lisa V. Martin, Dale Margolin, Steve Berenson, Karen Pearlman, Maryann Zavez
Empowerment, Innovation, And Service: Law School Programs Provide Access To Justice And Instill A Commitment To Serve, Lisa V. Martin, Dale Margolin, Steve Berenson, Karen Pearlman, Maryann Zavez
Faculty Publications
Law schools around the country seek to fill the legal needs of their communities in ways that are both innovative and mutually beneficial to clients and students. This article describes five pro bono and clinical programs, at the University of Richmond School of Law, The Earle Mack School of Law at Drexel University, Catholic University Columbus School of Law, the Thomas Jefferson School of Law, and Vermont Law School, where law students, under the supervision of law professors or community professionals, provide assistance or legal representation to underserved and often marginalized populations needing help with family law problems, including parents …
Epstein's Razor, David G. Owen
Epstein's Razor, David G. Owen
Faculty Publications
Richard Epstein, over a long and distinguished career, has offered inspired insights into how a legal system should be framed to serve the goals of those it governs. In that pursuit, he has relentlessly applied a sharp logic - call it Epstein's Razor - to shave away the detritus of complexity and confusion that surround perplexing problems, leaving standing only truths unscathed by competition among ideas. Over decades of diverse writings on law and political theory, highlighted by his elegant Simple Rules for a Complex World, Professor Epstein offers a vision of law constructed on the view that simplicity in …
Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle
Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle
Faculty Publications
Many estate planners have drafted wills and revocable trusts with dispositive provisions based on formulas. These formulas often use language based on transfer tax terminology. For clients who die in 2010, the language used in these formulas will be ambiguous, if not apparently meaningless, because Congress failed to re-institute the estate tax for 2010. The resulting 2010 estate tax hiatus will result in will and revocable trust construction problems for the estates of many decedents who die during the hiatus. Courts will have to use statutory and common law construction methods to attempt to determine the decedent's dispositive intentions. This …
A Sense Of Disentitlement: Frame-Shifting And Metaphor In Ashcroft V. Iqbal, Lisa A. Eichhorn
A Sense Of Disentitlement: Frame-Shifting And Metaphor In Ashcroft V. Iqbal, Lisa A. Eichhorn
Faculty Publications
No abstract provided.
International Greenhouse Gas Offsets Under The Clean Air Act, Nathan D. Richardson
International Greenhouse Gas Offsets Under The Clean Air Act, Nathan D. Richardson
Faculty Publications
Offsets, and in particular international offsets, have been advanced as an important tool in climate policy, capable of significantly reducing the costs of emissions reductions. As attention turns to the existing CAA as a potential vehicle for general reduction of GHG emissions, an important question is whether regulation under the statute is compatible with international offsets. Certain regulatory programs under the CAA are likely candidates for GHG regulation, but many of them are legally incompatible with international offsets. Those programs that might permit use of international offsets have other problems that make them unpopular choices for GHG regulation. To the …
Bending Nature, Bending Law, David Owen
When Is An Alternative Forum Available? Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels
When Is An Alternative Forum Available? Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels
Faculty Publications
No abstract provided.
Accounting For Historical Forces In The Effort To Align Law With Science, Derek W. Black
Accounting For Historical Forces In The Effort To Align Law With Science, Derek W. Black
Faculty Publications
No abstract provided.
Symposium Introduction - The Law Librarian's Role In The Scholarly Enterprise, Duncan E. Alford
Symposium Introduction - The Law Librarian's Role In The Scholarly Enterprise, Duncan E. Alford
Faculty Publications
No abstract provided.
When Is An Alternative Forum Available - Rethinking The Forum Non Conveniens Analysis, Joel Samuels
When Is An Alternative Forum Available - Rethinking The Forum Non Conveniens Analysis, Joel Samuels
Faculty Publications
No abstract provided.
Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow
Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow
Faculty Publications
Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …
Book Review: Unified Business Laws For Africa: Common Law Perspectives On Ohada, Duncan E. Alford
Book Review: Unified Business Laws For Africa: Common Law Perspectives On Ohada, Duncan E. Alford
Faculty Publications
No abstract provided.
After Unitary Status: Examining Voluntary Integration Strategies For Southern School Districts, Danielle R. Holley-Walker
After Unitary Status: Examining Voluntary Integration Strategies For Southern School Districts, Danielle R. Holley-Walker
Faculty Publications
This Article provides empirical data on student assignment plans that are currently being used by Southern school districts that have recently attained unitary status. As the facts of Parents Involved in Community Schools demonstrate, Southern school districts will likely continue to be at the forefront of the struggle over voluntary integration efforts. Many Southern school districts are being released from desegregation orders that allowed the district to use race-conscious remedies to address previous de jure racial segregation. Without those court orders, the school district is faced with a choice about whether to continue to make racial integration a priority and …
Aggravating Punitive Damages, David G. Owen
Aggravating Punitive Damages, David G. Owen
Faculty Publications
No abstract provided.
The Congressional Failure To Enforce Equal Protection Through The Elementary And Secondary Education Act, Derek W. Black
The Congressional Failure To Enforce Equal Protection Through The Elementary And Secondary Education Act, Derek W. Black
Faculty Publications
No abstract provided.
Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes, Colin Miller
Faculty Publications
No abstract provided.
Dangers In Prescription Drugs: Filling A Private Law Gap In The Healthcare Debate, David G. Owen
Dangers In Prescription Drugs: Filling A Private Law Gap In The Healthcare Debate, David G. Owen
Faculty Publications
No abstract provided.
Greenhouse Gas Regulation Under The Clean Air Act: Structure, Effects, And Implications Of A Knowable Pathway, Nathan D. Richardson, Arthur G. Fraas, Dallas Butraw
Greenhouse Gas Regulation Under The Clean Air Act: Structure, Effects, And Implications Of A Knowable Pathway, Nathan D. Richardson, Arthur G. Fraas, Dallas Butraw
Faculty Publications
It appears inevitable, absent legislative intervention, that regulation under the Clean Air Act (CAA) will move beyond mobile sources to the industrial and power facilities that emit most U.S. greenhouse gas (GHG) emissions. We analyze the mechanisms available to the EPA for regulating such sources, and identify one, New Source Performance Standards (NSPS) as the most predictable, likely, and practical, i.e. knowable, pathway. Based on the legal structure of the NSPS and the EPA’s traditional approach, we analyze a hypothetical GHG NSPS for one sector, coal electricity generation. This analysis indicates that efficiency improvements and perhaps biomass cofiring could be …
Greenhouse Gas Regulation Under The Clean Air Act: Does Chevron Set The Epa Free, Nathan D. Richardson
Greenhouse Gas Regulation Under The Clean Air Act: Does Chevron Set The Epa Free, Nathan D. Richardson
Faculty Publications
No abstract provided.
Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford
Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford
Faculty Publications
No abstract provided.
Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky
Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky
Faculty Publications
Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt the investment yield imbedded within the structured settlement from federal income taxation. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. Although the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs' lawyers and nonphysically injured tort plaintiffs under general, common-law tax …
Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug
Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug
Faculty Publications
No abstract provided.
Comprehensive Planning, Dominant-Use-Zones, And User Rights: A New Era In Ocean Governance, James N. Sanchirico, Josh Eagle, Steve Palumbi, Barton H. Thompson Jr.
Comprehensive Planning, Dominant-Use-Zones, And User Rights: A New Era In Ocean Governance, James N. Sanchirico, Josh Eagle, Steve Palumbi, Barton H. Thompson Jr.
Faculty Publications
Ocean-zoning arguments often center on the biology of ocean species, the geography of fishing-use patterns, and the need for preventing use conflicts. Here we expand this discussion to the social and legal aspects of ocean zoning, focusing on comprehensive planning, segregation of activities into use-priority areas, and the allocation of user rights within each zone. The inclusion of all of these features within an ocean-zoning regime can be a catalyst for a variety of ancillary benefits, including opportunities for user groups to form informal or formal long-lived institutions and a reassessment of the focus and scope of the regulatory institutions …
Book Review: Lexicon Of Human Rights, Duncan E. Alford
Book Review: Lexicon Of Human Rights, Duncan E. Alford
Faculty Publications
No abstract provided.
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan
Faculty Publications
No abstract provided.
The Political Fourth Amendment, Thomas P. Crocker
The Political Fourth Amendment, Thomas P. Crocker
Faculty Publications
The Political Fourth Amendment builds on Justice Ginsburg's recent dissent in Herring v. United States to argue for a "more majestic conception" of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution's protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to …