Law Commons^™

Focusing Your Firm On Ethics, Alex B. Long

Scholarly Works

No abstract provided.

Student Discussion About Money And The Middle Class, George Kuney

Scholarly Works

This is an edited transcript of a discussion session with law students regarding the subject of money and middle class identity and characteristics and related matters. The author is collecting interview and discussion sessions on these and similar subjects with an eye to producing a comprehensive view of current attitudes and assumptions.

Relinquished Responsibilities, Penny White

Scholarly Works

No abstract provided.

Toward A Better Competition Policy For The Media: The Challenge Of Developing Antitrust Policies That Support The Media Sector's Unique Role In Our Democracy, Maurice Stucke, Allen Grunes

Scholarly Works

It is difficult to formulate meaningful competition policy when there is a fierce debate over the current competitiveness of the media industry. After addressing the importance of the marketplace of ideas in our democracy, our article examines the current state of the media industry, including the response of traditional media to audience declines, the growth of new media, the impact of media consolidation (including its impact on minority and women ownership), and the role of the Internet. In response to recent calls for liberalizing cross-ownership rules to protect traditional media, our article outlines why conventional antitrust policy is difficult to …

Small Is The New Biglaw: Some Thoughts On Technology, Economics, And The Practice Of Law, Glenn Harlan Reynolds

Scholarly Works

This paper looks at technological and economic changes affecting lawyers, and their effect on the competitiveness of large law firms. It explores methods of unbundling big law firm features, and providing similar services on a more ad hoc basis. In addition, it considers whether current legal education is properly preparing students for a world in which large law firms will be much less dominant. Based on a talk given at Hofstra Law School in March of 2009.

The World's Richest Indian: The Scandal Over Jackson Barnett's Oil Fortune, Iris Goodwin

Scholarly Works

No abstract provided.

The Ethics Of Blawging: A Genre Analysis, Judy Cornett

Scholarly Works

Lawyers are blogging. As of October 16, 2009, the website Blawg.com tracked 2,788 legal blogs ("blawgs"). Another blawg directory compiled 4,622 blawgs in 69 substantive categories. When lawyers communicate, by whatever medium, ethical dilemmas arise; when lawyers blog, ethical dilemmas arise that are unique to blogging. The most visible ethical debate inspired by this new genre is the issue of whether to treat a lawyer's blog as advertising. Surprisingly, given the popularity of blawging, there are few resources addressing the full range of its ethical ramifications. This Article applies genre theory to blawging in order to highlight certain characteristics of …

Martha’S (And Steve’S) Good Faith: An Officer’S Duty Of Loyalty At The Intersection Of Good Faith And Candor, Joan Macleod Heminway

Scholarly Works

This short paper begins to explore whether a corporate officer’s duty of good faith extends to public disclosures of personal facts. Specifically, the paper preliminarily attacks the following question: in the post Stone v. Ritter, post-Gantler v. Stephens era in which we now live, is the absence or inadequacy of an executive officer’s disclosure of personal facts a breach of the duty of good faith and, as a result, the fiduciary duty of loyalty under Delaware law? The answer to this question is tied up in recent jurisprudence of the Delaware Supreme Court at the intersection of the duty of …

Unethical Protection? Model Rule 1.8(H) And Plan Releases Of Professional Liability, George Kuney

Scholarly Works

The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue.

Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of …

Using Judicial Performance Evaluations To Supplement Inappropriate Voter Cues And Enhance Judicial Legitimacy, Penny White

Scholarly Works

No abstract provided.

Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Glenn Harlan Reynolds

Scholarly Works

This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms …

Does The Rule Of Reason Violate The Rule Of Law?, Maurice Stucke

Scholarly Works

In the past few years, the Supreme Court has been more active in deciding antitrust issues. The Court's choice of legal standards affects future market behavior and the incentives for individuals and organizations to engage in productive activity. Despite its increased activity, the Court never assesses the deficiencies of its rule-of-reason standard under rule-of-law principles. This assessment is critical. This article analyzes the standard's significant deficiencies, and how these deficiencies adversely affect antitrust enforcement and competition policy generally. Perfect compliance with rule-of-law ideals, however, may be unobtainable and undesirable, so the Article recommends several improvements to reorient the rule of …

Executive Employment Agreements In Tennessee: An Annotated Model Tennessee Executive Employment Agreement, Joan Macleod Heminway, Trace Blankenship

Scholarly Works

The coauthors have constructed an annotated model executive employment agreement for use in connection with mergers and acquisitions, annotated with footnotes on substantive law and legal drafting issues. They intend that this model agreement serve as a research piece, teaching tool, and practitioner resource. This annotated model agreement is the most recent in a series of coauthored merger and acquisition agreements and ancillary agreements and instruments published by Transactions: The Tennessee Journal of Business Law beginning in 2003.

Regulation And Reform Of The Mortgage Market And The Nature Of Mortgage Loans: Lessons From Fannie Mae And Freddie Mac, Thomas E. Plank

Scholarly Works

No abstract provided.

Treated Differently In Life But Not In Death: The Execution Of The Intellectually Disabled After Atkins V. Virginia, Penny White

Scholarly Works

No abstract provided.

Concentrated Media Is Something We Can't Ignore: A Response To Speaker Pelosi, Maurice Stucke

Scholarly Works

This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends …

Common Roots, Divergent Evolution: Insider Trading Doctrine In The United States, Japan, And Germany, Joan Macleod Heminway

Scholarly Works

Many nations ostensibly use (or at least credit) U.S. insider trading doctrine under Rule 10b-5 as the model for their own regulation of insider trading. This phenomenon has occurred in part because of historical and political factors and in part because the United States is seen as (and has wielded regulatory power as) a market leader — an early adopter of regulation with both (a) a well established supervisory and policy-oriented regulatory and enforcement agency and (b) a well developed, disaggregated, public securities market. As a result, the laws of many countries now prohibit identified classes of persons from trading …

Oral Argument And Impression Management: Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience, Michael J. Higdon

Scholarly Works

In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person's facial …

Pedagogic Techniques: Multi-Disciplinary Courses, Annotated Document Review, Collaborative Work & Large Groups, George Kuney

Scholarly Works

No abstract provided.

Wanted: Female Corporate Directors (A Review Of Professor Douglas M. Branson's No Seat At The Table), Joan Macleod Heminway, Sarah A. Walters

Scholarly Works

In his 2007 book No Seat at the Table, Professor Douglas Branson aptly describes how patterns of male dominance inherent in the legal structures of corporate governance reproduce themselves again and again to keep women out of executive suites and boardrooms, and then he offers a practical way to break this cycle of dominance-through paradigm shifting. A central value of Professor Branson's book derives from this thesis, as well as his use of nontraditional empirical data and interdisciplinary literature (in addition to more traditional decisional law and legal scholarship) to support the positions he takes. Moreover, No Seat at …

Should The Government Prosecute Monopolies?, Maurice Stucke

Scholarly Works

In the past few years, courts and the Department of Justice have cited approvingly the Court's dicta in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP. This article analyzes why the economic thinking in Trinko is wrong, and how the Court ignores its precedent involving the Sherman Act's concerns of monopolies' political, social and ethical implications. It responds to the Court's claim that cartel behavior is easier to identify and remedy than monopolistic behavior and proposes an improvement to the Court's current rule of reason standard to reduce the risk of false positives, while enabling the antitrust …

New Antitrust Realism, Maurice Stucke

Scholarly Works

In the midst of a failing economy, the incoming Obama administration will not likely adopt its predecessor's antitrust policies. So if change is afoot, what form should change take? This essay outlines the needed transformative change in today's competition policy. The essay proposes more empirical analysis by the U.S. competition authorities, outlines how behavioral economics can assist in this new antitrust realism, and concludes in explaining why such antitrust realism is needed.

Female Investors And Securities Fraud: Is The Reasonable Investor A Woman?, Joan Macleod Heminway

Scholarly Works

This paper extends existing scholarship that questions the existing materiality standard used under Rule 10b-5 (and elsewhere in U.S. securities regulation) and its touchstone notion of the reasonable investor. Specifically, the paper asks and answers a seemingly straightforward, yet provocative, question: Is the reasonable investor a woman? The paper then preliminarily explores the potential significance of its key findings - that women and men exhibit different investment behaviors and achieve different investment outcomes, and that the resulting female investor profile is closer to existing conceptions of the reasonable investor than the resulting male investor profile.

As women become larger players …

Martha Stewart And The Forbidden Fruit: A New Story Of Eve, Joan Macleod Heminway

Scholarly Works

This paper narrates a biblical story - Eve’s ingestion of the forbidden fruit - and analogizes it to a recent business law story that I explore in my scholarship and use in my teaching - Martha Stewart’s sale of ImClone stock as alleged insider trading. The analogy, while imperfect, helps expose interesting questions about the descriptive and normative content of U.S. insider trading law and related legal process issues. Although many of the points made in the paper (and the related details and examples presented) can be and have been explored or used in other ways, I contend that the …

Strip-Mining And Grassroots Resistance In Appalachia: Community Lawyering For Environmental Justice, Dean Rivkin

Scholarly Works

Environmental justice campaigns have been a dynamic feature of public interest lawyering for over four decades. These community lawyers, sensitive to the democratic imperatives of their grassroots clients, employ a viscous blend of legal and nonlegal strategies to achieve their clients’ aims. This article is the story of an environmental justice campaign, still being waged, in the Appalachian mountains of east Tennessee. The campaign seeks to halt the destructive practice of mountaintop removal strip-mining for coal through the deployment of traditional litigation and more unconventional extrajudicial strategies, both of which are designed to build the voices and power of the …

Ask Not What Your Charity Can Do For You: Robertson V. Princeton Provides Liberal-Democratic Insights Into Cy Pres Reform, Iris Goodwin

Scholarly Works

This article centers on a long-standing problem in the law of public charity: how to ameliorate the force of restrictions imposed by donors on large gifts in the face of societal change. Seeking to advance personal beliefs or social agenda, donors of large gifts commonly limit the application of donated funds to particular programs. Under current law, such restrictions obtain in perpetuity. A restriction, if socially apposite when made, often functions as a dead hand upon the charity with the passage of time. What has long been sought by the legal community is a substantive standard by which to evaluate …

Introduction To The Special Report, George Kuney

Scholarly Works

No abstract provided.

Whistleblowing Attorneys And Ethical Infrastructures, Alex B. Long

Scholarly Works

Rule 5.1 of the ABA’s Model Rules of Professional Conduct requires law firm partners to make reasonable efforts to supervise subordinate attorneys and to ensure that the firm has internal measures in place that give 'reasonable assurance' that all lawyers within the firm are complying with their ethical obligations. Despite the existence of this ethical duty, there are enough judicial decisions involving attorneys who have been fired for blowing the whistle on unethical conduct to lead one to suspect that perhaps law firm compliance measures regarding Rule 5.1 leave something to be desired. This Article discusses the role that a …

Saving Law Reviews From Political Scientists: A Defense Of Lawyers, Law Professors, And Law Reviews, Benjamin H. Barton

Scholarly Works

This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …

Protecting A Business Entity Client From Itself Through Loyal Disclosure, Paula Schaefer

Scholarly Works

No abstract provided.