Law Commons^™

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita Krug

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This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation …

Compassion And Coalitions: A Review Of Reshaping The Work Family Debate: Why Men And Class Matter By Joan Williams, Carolyn Shapiro

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Reshaping the Work-Family Debate: Why Men and Class Matter by Joan Williams is illuminating, intellectually challenging, and insightful. It is not, however, a typical law professor book. Neither academic inquiry nor policy analysis (although it contains elements of both), Reshaping the Work-Family Debate is more of a manifesto. Williams seeks measurable and meaningful change in the family and work lives of Americans, even if that change is imperfect or incomplete, and she sees theoretical or ideological rigidity as one obstacle to such change.

Williams believes that coalition-building is essential to addressing the work family challenges she identifies. Although she has …

Reassessing The Citizen Virtues Of Homeownership, Stephanie M. Stern

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The assumption that homeownership creates more politically and civically engaged citizens who contribute to local communities (as well as national democracy) dominates property law. This belief underlies influential theories of property and land use and justifies housing policies promoting homeownership and expanding homeownership’s reach. This Essay challenges the “citizenship virtues” of homeownership and contends that the evidence reveals a far more modest, and particularized, picture of citizenship effects than commonly assumed. I explore psychological, historical, and economic factors that may underlie the variable citizenship effects from homeownership. Some of these factors elucidate not only why owners and tenants perform similarly …

The Tea Party And The Constitution, Christopher W. Schmidt

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This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A …

Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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No abstract provided.

Response To Beth Richie’S Black Feminism, Gender Violence And The Build-Up Of A Prison Nation, Kimberly D. Bailey

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No abstract provided.

South Africa’S Land Reform Crisis: Eliminating The Legacy Of Apartheid, Bernadette Atuahene

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No abstract provided.

Lost In Translation: Domestic Violence, "The Personal Is Political," And The Criminal Justice System, Kimberly D. Bailey

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No abstract provided.

Homogenous Rules For Heterogeneous Families: The Standardization Of Family Law When There Is No Standard Family, Katharine K. Baker

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The article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation - child support, property division and alimony - has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and their intimate lives, the law of family obligation has become less, not more attentive to context. This piece explains how the law’s rejection of context is an understandable reaction to the growing diversity of family …

The Gendered Lives Of Legal Aid: Lay Lawyers, Social Workers, And The Bar, 1863-1960, Felice J. Batlan

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The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even …

A Brief History Of Energy Law In United States Law Schools: An Introduction To The Symposium (Symposium Editor), Fred P. Bosselman

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No abstract provided.

Green Diesel: Finding A Place For Algae Oil (Symposium Editor), Fred P. Bosselman

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The prospect of obtaining domestically-produced biodiesel from algae has attracted wide investor interest. Although many analysts predict that economic production is five to ten years away, the production process involves such a wide range of environmental and land use issues that it is not premature to begin thinking about the kinds of places in which “green biodiesel” could be efficiently made in the United States. Our land use and environmental laws were all drafted by people who never imagined the possibility that huge volumes of algae would be an important energy resource; nor could they have known that the location …

How Public Is Private Philanthropy? Separating Reality From Myth (Philanthropy Roundtable, 2d Ed. 2012) (With J. Tyler), Evelyn Brody

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No abstract provided.

The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco

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No abstract provided.

From Control To Communication: Science, Philosophy And World Trade Law, Sungjoon Cho

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Science has recently become increasingly salient in various fields of international law. In particular, the WTO Sanitary and Phytosanitary (SPS) Agreement stipulates that a regulating state must provide scientific justification for its food safety measures. Paradoxically, however, this ostensibly neutral reference to science tends to complicate treaty interpretation. It tends to take treaty interpretation beyond a conventional methodology under the Vienna Convention on the Law of Treaties, which is primarily concerned with clarifying and articulating the treaty text. The two decades old transatlantic trade dispute over hormone-treated beef is a case in point. This article demonstrates that beneath the controversy …

Method, Community And Comparative Law: An Encounter With Complexity Science, David J. Gerber

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Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: “This talk will be about complex adaptive systems—the emerging science of complexity.” Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be “he’s in the wrong room.” Another set of reactions is likely to be “What? What’s that? Never heard of …

“Get Real” Giving Writing Assignments, Todd Haugh

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No abstract provided.

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

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Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

Ethnic Cleansing As Euphemism, Metaphor, Criminology And Law, Todd Haugh

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No abstract provided.

Federal Power, Non-Federal Actors: The Ramifications Of Free Enterprise Fund, Harold J. Krent

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In Free Enterprise Fund v. Public Company Accounting Oversight Board the Supreme Court invalidated Congress’s decision to protect members of the Board from at will removal by the Securities and Exchange Commission, whose members in turn are protected from at will removal at the hands of the President. In the Court’s view, the congressional structure – in particular, the double layer of tenure insulation -- undermined the Article II imperative that all exercises of significant executive authority be subject to strong supervision by the President. The Court’s insistence in Free Enterprise Fund on formal presidential control over an inferior executive …

Copyright, Death, And Taxes, Edward Lee

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The Copyright Act of 1976 is due for a major revision in the 21st century, in order to keep pace with the advances in digital technologies. This Article offers a new alternative for copyright reform: tax law. Using the tax system as a way to modernize our copyright system offers several advantages. Most important, tax law can fix problems in our copyright system without violating the Berne Convention or TRIPS Agreement, and without requiring amendment to either treaty. Tax law can also be used to incentivize the copyright industries to adopt new, innovative approaches to copyright in ways that voluntary …

Measuring Trips Compliance And Defiance: The Wto Compliance Scorecard, Edward Lee

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This Article proposes the tabulation of a TRIPS Compliance Scorecard measuring a country’s attempt to correct any treaty violation that a WTO panel or the Appellate Body has found against the country. The scorecard can provide greater transparency and attention to member compliance with WTO treaty obligations, and it would enable greater cross-country comparisons. Part I surveys the number of IP disputes brought before the WTO since its inception (2005 to 2011), with particular focus on those disputes that culminated in a panel or Appellate Body decision. Part II proposes the WTO’s adoption of a TRIPS Compliance Scorecard that will …

An Introduction To Comparative Jury Systems (Symposium Editor), Nancy S. Marder

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The jury is experiencing a renaissance worldwide. Countries that have never had a jury system, or have had one in the past, have turned to citizens to decide criminal cases. Countries, especially those that aspire to be more democratic, have begun to recognize the importance of having ordinary citizens participate in the criminal justice system. Meanwhile, countries with a longstanding jury tradition continue to maintain that tradition. As some countries consider how best to introduce the jury, or some variation of it such as a mixed court of laypersons and professional judges, and other countries consider how best to improve …

Two Weeks At The Old Bailey: Jury Lessons From England (Symposium Editor), Nancy S. Marder

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As deeply-rooted as the jury is in the United States, it is not beyond improvement. There is no better starting place for ideas than England, which provided the model for our jury system. To learn firsthand about current jury practices in England, I spent two weeks observing criminal jury trials at the Old Bailey in London. My goal was to examine jury practices at the Old Bailey and to consider which ones could work well in the United States. I observed some jury practices that I thought we should adopt immediately, and others that would work well in the long …

Cut In Tiny Pieces: Ensuring That Fragmented Ownership Does Not Chill Creativity, Henry H. Perritt Jr.

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The market for video entertainment is growing and becoming more diverse as technology reduces barriers to entry for small, independent moviemakers and distributors and increases consumers’ ability to access the media of their choice. The growing complexity of the market, however, increases transaction costs for new entrants who must obtain licenses to copyrighted music, characters, storylines, or scenes that they incorporate into their movies. The entertainment bonanza offered by new technologies may not be realized in practice because of market failure. The purposes of the Copyright and Patents Clause are frustrated because creators of new works wishing to use new …

New Business Models For Music, Henry H. Perritt Jr.

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The popular music industry is in the middle of a technology-driven revolution. It is clear that the old order has been swept away, but it is not yet clear what form the “new order” will take. The major labels are on life support and will not survive in anything like their previous form. Compact Discs are dead as a distribution medium. Copyright is unenforceable and hence essentially irrelevant except at the margins of the “new order.” Barriers to entry have been reduced dramatically as the costs of producing top-quality recordings have declined by a couple of orders of magnitude. Portable …

Conceptions Of Law In The Civil Rights Movement, Christopher W. Schmidt

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No abstract provided.

Vulnerable Software: Product-Risk Norms And The Problem Of Unauthorized Access, Richard Warner, Robert H. Sloan

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Unauthorized access to online information costs billions of dollars per year. Software vulnerabilities are a key. Software currently contains an unacceptable number of vulnerabilities. The standard solution notes that the typical software business strategy is to keep costs down and be the first to market even if that means the software has significant vulnerabilities. Many endorse the following remedy: make software developers liable for negligent or defective design. This remedy is unworkable. We offer an alternative based on an appeal to product-risk norms. Product-risk norms are social norms that govern the sale of products. A key feature of such norms …

The Legal-Political Barriers To Ramping Up Hydro (Symposium), A. Dan Tarlock

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No abstract provided.

Private Nuisance Law: A Window On Substantive Justice, Richard W. Wright

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No abstract provided.