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Full-Text Articles in Law
The Gender/Class Divide: Reproduction, Privilege, And The Workplace, June Carbone, Naomi Cahn
The Gender/Class Divide: Reproduction, Privilege, And The Workplace, June Carbone, Naomi Cahn
Articles
This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …
Designing Countercyclical Capital Buffers, Brett Mcdonnell
Designing Countercyclical Capital Buffers, Brett Mcdonnell
Articles
This essay explores the new countercyclical capital buffer requirement that is a part of both the Basel III and Dodd-Frank rulemaking efforts following the financial crisis. The new buffer will require banks to hold higher levels of capital reserves during times that regulators determine capital markets have created excessive levels of debt. This essay briefly explores why financial regulation tends to be procyclical, how the new capital buffer attempts to address that tendency, and how well the attempt is likely to work. The verdict is mixed. The new countercyclical buffer may do some good. However, some features in its design …
Women's Exclusion From The Constitutional Canon, Jill Elaine Hasday
Women's Exclusion From The Constitutional Canon, Jill Elaine Hasday
Articles
This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition — a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race …
Limits Of Disclosure, Steven Davidoff Solomon, Claire Hill
Limits Of Disclosure, Steven Davidoff Solomon, Claire Hill
Articles
Disclosure has its limits. One big focus of attention, criticism, and proposals for reform in the aftermath of the 2008 financial crisis has been securities disclosure. But most of the criticisms of disclosure relate to retail investors. The securities at issue in the crisis were mostly sold to sophisticated institutions. Whatever retail investors’ shortcomings may be, we would expect sophisticated investors to make well-informed investment decisions. But many sophisticated investors appear to have made investment decisions without making much use of the disclosure. We discuss another example where disclosure did not work as intended: executive compensation. The theory behind more …
Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell
Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell
Articles
The financial crisis has yielded significant losses for shareholders, and for the greater society. Shareholder suits arguing that boards should have been more active monitors have failed. We argue here for an expansion of board monitoring duties. The crisis suggests that corporations may sometimes abuse the privilege of limited liability. Boards should be charged with monitoring for risks arising from corporations' operations and procedures (including their compensation practices) that might significantly harm both shareholders and society at large.
Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman
Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman
Articles
U.S. energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges — such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy …
Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter
Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter
Articles
This essay, which builds on my recent work on the law and economics of comparative patent remedies, presents three proposals relating to the enforcement of domestic patent rights. The first, which may be close to being adopted in the United States, is for the courts and the International Trade Commission (ITC) to adopt a general presumption, grounded in patent law and policy, that patent owners who have committed to license their standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory terms are not entitled to permanent injunctions or exclusion orders, but rather only to a damages in the form of …
Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix
Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix
Articles
Lawrence Cunningham's Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases--in summary form or in longer excerpts--are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.
U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili
U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili
Articles
This Article analyzes how refugee lawyers in the United Kingdom navigate the tension between state power and international norms. Based on interviews with lawyers representing persons seeking asylum and other forms of refugee protection in the United Kingdom, the Article reveals how these lawyers successfully utilize international human rights treaties on behalf of their clients despite domestic policies making it more difficult for refugees to assert their rights. The Article argues that U.K. refugee lawyers play a critical role in the globalization struggle by encouraging state actors (in this case, the judiciary) to adhere to international norms that might otherwise …
The Triple System Of Family Law, June Carbone, Naomi Cahn
The Triple System Of Family Law, June Carbone, Naomi Cahn
Articles
The Article analyzes the role of class in family structure and family law. Building on Jacobus ten Broek’s classic articulation of a “dual system” of family law, we explore the nascent development of a parallel third system of family law. In the early sixties, ten Broek argued that family law had two parts that differ in substance, purpose, and procedure. One system focused on private arrangements and supported the families of those who were economically self-sufficient. Ten Broek maintained, however, that a parallel second system existed, one imposed on those who sought public assistance. In this second system: i) the …
Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt
Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt
Articles
Computers and the Internet have changed and are continuing to change the way governments, militaries, businesses, and other organs of society manage their activities. While computers can improve efficiency, they are vulnerable to cyber-attack, cyber-crime, and cyber-espionage. 1 The international community, states, and businesses are still adapting to the unique set of challenges posed by cyber-attack, cyber-crime, and cyber-espionage. States are creating military operations that specialize in cyber-attack and defense to adapt to these relatively new threats to national security operations. 2
Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain
Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain
Articles
International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while …
Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang
Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang
Articles
This Article advocates fundamental changes in the federal income tax base by systematically challenging conventional understandings of consumption and investment. As signaled by its title, “Costly Mistakes,” this Article's thesis has to do with the disparate treatment of expenditures incurred by business owners and workers. Where the current tax law treats a business owner's expenditure as investment, the Article sometimes finds consumption and questions why the law should allow the expenditure to be deducted. Where the tax law treats a worker's expenditure as consumption, the Article sometimes finds investment and questions why the law does not allow at least a …
Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld
Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld
Articles
Police interrogation raises difficult legal, normative, and policy questions because of the State's need to solve crimes and obligation to protect citizens' rights. These issues become even more problematic when police question juveniles. For more than a century, justice policies have reflected two competing visions of youth: vulnerable and immature versus responsible and adult-like. A century ago, Progressive reformers emphasized youths' immaturity and created a separate juvenile court to shield children from criminal trials and punishment. 2 By the end of the twentieth century, lawmakers adopted "get tough" policies, which equated adolescents with adults and punished youths more severely. 3 …
Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld
Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld
Articles
The Supreme Court in Roper v. Simmons 1 prohibited states from executing offenders for murders committed when younger than eighteen years of age. Roper found a national consensus existed against executing adolescents based on state statutes and jury practices. 2 The Justices also conducted an independent proportionality analysis and concluded that youths' immature judgment, susceptibility to negative peer influences, and transitory personality development reduced their culpability and precluded the most severe sentence. 3
The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, Barry C. Feld
The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, Barry C. Feld
Articles
In a trilogy of cases, the Supreme Court applied the Eighth Amendment to the entire category of juvenile offenders, repudiated its “death is different” jurisprudence, and required states to consider youthfulness as a mitigating factor in sentencing. Roper v. Simmons prohibited states from executing offenders for murder they committed when younger than eighteen years of age.1 Roper reasoned that immature judgment, susceptibility to negative influences, and transitory personalities reduced youths’ culpability and barred the most severe sentence.2 Graham v. Florida extended Roper’s diminished responsibility rationale and prohibited states from imposing life without parole (LWOP) sentences on youths convicted of nonhomicide …
The Capstone Course In Labor And Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, And Professionalism, Laura J. Cooper
The Capstone Course In Labor And Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, And Professionalism, Laura J. Cooper
Articles
The twenty-first century challenge for law schools in general, and for labor and employment law professors in particular, is truly to prepare students for the practice of law. Diverse voices have criticized the legal academy for how far it has fallen short of meeting that challenge.1 The most detailed and comprehensive critique of law schools’ failure adequately to prepare students for the practice of law was presented by The Carnegie Foundation for the Advancement of Teaching in its 2007 study generally known as the “Carnegie Report.”2
Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy
Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy
Articles
I devoted a great deal of my teaching energy during the last ten years of my tenure at the University of Minnesota Law School to a course I called the Sentencing Workshop. The Workshop provided a unique opportunity for law students and judges to learn from each other about the intricacies, the successes and failures of the American criminal justice sentencing structure and practice. I will describe it in three phases: initially, to give some context, I will report a dramatic Workshop discussion which occurred the fth or sixth year the course was o ered. A short summary of the …
Boilerplate, Freedom Of Contract, And "Democratic Degradation", Brian H. Bix
Boilerplate, Freedom Of Contract, And "Democratic Degradation", Brian H. Bix
Articles
In Margaret Jane Radin's provocative new book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, 1 the author offers scathing observations regarding the motivation and effects of the terms placed in consumer and employee form contracts and on-line agreements. She argues that the current contracting practices make a mockery of consent, and undermine the rule of law. 2 Boilerplate's essential claim is that for many contracting parties, freedom of contract is less an ideal than a sham. 3 The book properly criticizes theories of contract law (and courses in contract law) that largely ignore boilerplate and its …
Law Schools And The Continuing Growth Of The Legal Profession, Herbert M. Kritzer
Law Schools And The Continuing Growth Of The Legal Profession, Herbert M. Kritzer
Articles
In most countries for which data are available, the size of the legal profession has continued to grow over the last 40 plus years. This continued growth reflects the perceived attractiveness of a career as a legal professional (i.e., the demand) and the incentives of the institutions that provide legal education, and hence serve as primary gatekeepers, to maintain or increase the number of students they enroll. In some countries, perhaps most prominently the United States, structural changes in the opportunities for careers in the legal profession are likely to put pressure on law schools that could result in changes …
Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer
Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer
Articles
Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …
Building A Strong Foundation: Justice John Simonett And Constitutional Law In Minnesota, Robert Stein
Building A Strong Foundation: Justice John Simonett And Constitutional Law In Minnesota, Robert Stein
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I am delighted to join in this Tribute to the remarkable judicial career of Minnesota Supreme Court Justice John E. Simonett—a great justice and, equally important, a great human being. I remember Justice Simonett with deep respect and affection. During my years as dean of the University of Minnesota Law School, I could always count on Justice Simonett to enliven any program with his erudite and pithy remarks, his wit, and his joyful presence. I remember particularly a Judges in Residence program in which Justice Simonett and Justice Anthony Kennedy of the Supreme Court of the United States were the …