Law Commons^™

A Broader View Of Corporate Inversions: The Interplay Of Tax, Corporate And Economic Implications, Orsolya Kun

ExpressO

Multinational corporations have, in substantial numbers, moved their corporate residence from the U.S. to Bermuda, for the purpuse of minimizing U.S. taxation on their worldwide income. This study reviews the forms of these "corporate inversion transactions," and explores their tax implications, as well as their corporate governance implications and motivations. It is the first scholarly study to examine the corporate governance implications of inversions, and it concludes that previously unexplored aspects of the change of corporate domicile result in substantial reduction of accountability of directors and officers and significant impediments to enforcement of shareholder rights.

Atca, Doe V. Unocal: A Paquete Habana Approach To The Rescue, John Haberstroh

ExpressO

The article's centerpiece is the Ninth Circuit litigation (Doe v. Unocal) charging Unocal Corp. with complicity in the Burma’s government’s use of forced labor. The article first examines the Alien Tort Claims Act, under which the action is brought, through an exploration of that statute’s original purpose and historical context. The article then looks at the modern revival of ATCA in international human rights claims, and finally closely considers the Unocal litigation, in particular the September 18, 2002 decision favoring the plaintiffs. (The 2002 decision is undergoing review by an en banc panel of the Ninth Circuit, with the panel’s …

Biological Factors Associated With Aggression And Violent Behavior: A Comparative Analysis Of Scientific, Societal, And Legal Dimensions, Troy M. Bear

ExpressO

No abstract provided.

Scrooge—The Reluctant Stakeholder, Benedict C. Sheehy

ExpressO

Abstract: Corporations law around the world is moving in the direction of the shareholder primacy model, common in the USA and other common law countries. Lawyers, academics and public policy analysts are divided as to the merits of the model and its main competitor, the stakeholder model. The gist of arguments usually hinge on economics. This article examines the claims for and against the two models on their own terms, and suggests that law has a unique contribution to make to the development of the corporation and society.

The Immunity Of Foreign Subsidiaries Under The Foreign Sovereign Immunities Act, Melissa M. Lang

ExpressO

No abstract provided.

A Deadly Dilemma: Strategic Choices By Attorneys Representing "Innocent" Capital Defendants, Welsh S. White

ExpressO

No abstract provided.

The Philadelphia Story: The Rhetoric Of School Reform, Susan Dejarnatt

ExpressO

No abstract provided.

Regulating Internet Payment Intermediaries, Ronald J. Mann

ExpressO

This paper examines legal and policy issues raised by changes in payment methods related to the rise of the Internet. The two major changes – the rise of P2P systems like PayPal, and the rise of Internet billing systems (EBPP) to replace the use of paper bills and checks – both involve new intermediaries that facilitate payments made by conventional payment systems. The paper first discusses how those systems work. It then discusses problems in the framework currently used to regulate those systems in the United States, which has not been updated to protect consumers from the special problems those …

Resource Parity For Defense Counsel And The Struggle Between Public Choice And Public Ideals, Ronald F. Wright

ExpressO

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. I ask whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources.

For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this …

Department Of Justice Guidelines: Balancing "Discretionary Justice", Ellen S. Podgor

ExpressO

No abstract provided.

Expected Value Arbitration, Joshua P. Davis

ExpressO

This Article proposes a new form of dispute resolution, Expected Value Arbitration or “EVA.” It would award a plaintiff the expected value of the outcome at trial or, in other words, the plaintiff would receive the amount she would recover on average if numerous courts were to decide her claim. EVA’s novel use of expected value gives it several virtues that distinguish it from trial, traditional binding arbitration, and other academic proposals for imposed compromise: first, EVA allows parties to insist on their legal rights without braving the risks of winner-take-all adjudication; second, it minimizes errors in adjudication; and, third, …

The American "Covenant Marriage" In The Conflict Of Laws, Peter Hay

ExpressO

Three states have adopted covenant marriage legislation, with similar bills pending in others. They seek a greater commitment of the spouses-to-be and mkake divorce more difficult. At the same time, other forms of partnerships are proposed in other states. To what extent can covenant-marriage legislate assure that it will be given in other states (interstate) or internationally? The suggested answer is: the divorcing U.S. forum applies its own law (covenant-law or non-covenant law), some foreign systems will apply the parties' home law (thus recognizing restrictions when a U.S. sister state would not).

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Liability Rules For Constitutional Rights: The Case Of Mass Detentions, Eugene Kontorovich

ExpressO

Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

New Jersey’S Model Response To Predatory Lending, David J. Reiss

ExpressO

As widespread media coverage has documented, predatory home lending practices have become rampant throughout the country and, notably, among low-and moderate-income and African American communities in New Jersey. Our article analyzes this emerging problem as a sometimes devastating side effect of the rapid increase in American home ownership, an otherwise almost completely desirable phenomenon.

Because predatory lending has been so difficult to define, states have struggled to regulate it. New Jersey, building on the work of a few other leading states, has drafted what many consider to be the new standard for predatory lending legislation, the Home Ownership Security Act. …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

Beyond Dilution: Toward A Coherent Theory Of The Anti Free Rider Impulse In American Trademark Law, David J. Franklyn

ExpressO

This article argues for a fundamental shift in the way famous trademarks are protected under American trademark law. Currently, famous marks are protected by dilution law, which purports to prevent a particular kind of harm (i.e., the gradual whittling away of the commercial magnetism of a famous mark). The article argues that this is the wrong focus of famous mark protection, because dilution is an illusory concept; it either does not exist, or it is so difficult to prove, that it is an ineffective and misleading doctrinal tool. The article contends that American trademark law should move from the harm-based …

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

A Family Affair: Sharing Information About Genetic Diseases, Lyria K. Bennett Moses

ExpressO

Genetic test results provide information relevant to the future health of the person tested as well as parents, siblings, children and more distant relatives. This Article examines the legal consequences that might follow a decision to share or withhold genetic information. It argues that the obstacles to liability might not be justified in situations where either disclosure of genetic information or silence will cause significant harm.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War. The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael L. Selmi

ExpressO

This article analyzes a series of class action employment discrimination cases that have arisen in the last decade to challenge persistent sex discrimination against women. These cases have targetted the practices in the securities and grocery industries, and include a series of sexual harassment class action claims. These cases pose a challenge to the consensual view that sex discrimination is now perpetuated through subtle practices, and instead highlight the continuing ways in which male norms are preserved in the workplace through intentional acts of hostility and exclusion.

Interpersonal Dynamics, Joshua D. Rosenberg

ExpressO

This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from …

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

Bioterrorism, Biodefense, And Biotechnology In The Military: A Comparative Analysis Of Legal And Ethical Issues In The Research, Development, And Use Of Biotechnological Products On American And British Soldiers., Ashley R. Melson

ExpressO

Despite the legal and ethical concerns raised, biotechnology continues to offer countless opportunities for enhancing military capabilities. As such, the research, development and utilization of biotechnological products are present realities in the U.S. and abroad, both within and outside of the defense context. However, testing and usage, as well as effective collaboration between Allies, calls for the resolution of complex and pressing issues presented by this intersection of science, technology, and human lives. Resolutions must take into account the history of abuses in military research, existing domestic and international legal and ethical safeguards, and a special respect for those serving …

Norms, Rationality, And Communication: A Reputation Theory Of Social Norms, Andreas Engert

ExpressO

Does the discovery of "law and social norms" necessitate breaking with the rational choice paradigm? In this paper, I argue for an answer in the negative. To this end, I propose a reputation theory of social norms, which differs from other proposals in two principal respects: First, it explains norms without any assumption of behavioral constraints (like habit or conscience) and normative motivations (like altruism or aspiration to esteem). Second, it does even without any assumption regarding model-exogenous, private information that most other reputation and signaling explanations use (such as the discount rate in Eric Posner's signaling model).

Instead, reputation …

Procreative Freedom And Convicted Criminals In The United States And The United Kingdom: Is Child Welfare Becoming The New Eugenics?, Elaine E. Sutherland

ExpressO

International law rightly accords procreative freedom a high order of respect and it is easy to understand why that is so. Eugenics, which was advanced initially with good intentions in the belief that it was, indeed, scientific, provides us with a clear example of the dangers that can result from failing to respect procreative freedom. Usually the law in the various parts of the US and the UK mirrors international law’s respect for procreative freedom. Another principle, promoted by international law and, again, given considerable prominence in US and UK jurisprudence, is that the welfare of the child is of …

The Guise Of Justice: Jurisdiction & Extradition Of Osama Bin Laden & Al Qaeda Terrorists, Matthew Greenwell

ExpressO

No abstract provided.