Law Commons^™

The Supreme Court's New Public-Private Distinction Under The Dormant Commerce Clause: Avoiding The Traditional Versus Nontraditional Classification Trap, Bradford Mank

Faculty Articles and Other Publications

In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held that the ‘dormant’ Commerce Clause doctrine (DCCD) allows for a distinction between appropriate laws establishing local government monopolies that provide public services such as waste disposal as opposed to inappropriate laws favoring the self interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky …

Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank

Faculty Articles and Other Publications

This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing …

Bitter Knowledge: Socrates And Teaching By Disillusionment Appendix B - The Meno, Thomas D. Eisele

Faculty Articles and Other Publications

It was been suggested (and here I am thinking in particular of comments made by Professor William Prior) that my book, Bitter Knowledge, would benefit from a more comprehensive attention to the argumentative details of the dialogues studied there. Professor Prior specifically suggests that, if we were to be given more of their argumentation, we might better appreciate the motivation or the disposition of the speakers in the dialogues under study.

The book as designed, as submitted in typescript, and as accepted for publication, included three appendices. These appendices comprised detailed outlines of the speakers and events portrayed in, respectively, …

Bitter Knowledge: Socrates And Teaching By Disillusionment Appendix C - The Theaetetus, Thomas D. Eisele

Faculty Articles and Other Publications

It was been suggested (and here I am thinking in particular of comments made by Professor William Prior) that my book, Bitter Knowledge, would benefit from a more comprehensive attention to the argumentative details of the dialogues studied there. Professor Prior specifically suggests that, if we were to be given more of their argumentation, we might better appreciate the motivation or the disposition of the speakers in the dialogues under study.

The book as designed, as submitted in typescript, and as accepted for publication, included three appendices. These appendices comprised detailed outlines of the speakers and events portrayed in, respectively, …

Bitter Knowledge: Socrates And Teaching By Disillusionment Appendix A - The Protagoras, Thomas D. Eisele

Faculty Articles and Other Publications

It was been suggested (and here I am thinking in particular of comments made by Professor William Prior) that my book, Bitter Knowledge, would benefit from a more comprehensive attention to the argumentative details of the dialogues studied there. Professor Prior specifically suggests that, if we were to be given more of their argumentation, we might better appreciate the motivation or the disposition of the speakers in the dialogues under study.

The book as designed, as submitted in typescript, and as accepted for publication, included three appendices. These appendices comprised detailed outlines of the speakers and events portrayed in, respectively, …

Standing And Future Generations: Does Massachusetts V. Epa Open Standing For Generations To Come?, Bradford Mank

Faculty Articles and Other Publications

Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.

An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury …

Deterring "Double-Play" Manipulation In Financial Crisis: Increasing Transaction Cost As A Regulatory Tool, Lin (Lynn) Bai, Rujing Meng

Faculty Articles and Other Publications

The sub-prime mortgage crisis that originated in the United States has triggered a global credit crunch, threatening the solvency of emerging markets that have relied heavily on foreign debt, and resulting in the devaluation of their currencies. Currency market interventions by the central banks in countries with a currency board system lead to higher short-term interest rates and further declinations in the local stock market. This economic setting invites the double-play manipulation strategy that simultaneously attacks both the local currency and the stock market. History has shown that a central bank’s stock market intervention is costly and that sustaining the …

Do Differences In Pleadings Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lin (Lynn) Bai

Faculty Articles and Other Publications

Federal appellate courts have promulgated divergent legal standards for pleading fraud in securities fraud class actions after the Private Securities Litigation Reform Act (PSLRA). Recently, the Supreme Court of the United States issued a decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd. that could have resolved these differences, but did not do so. This Paper provides two significant contributions. We first show that Tellabs avoids deciding the hard issues that confront courts and litigants daily in the wake of the PSLRA's heightened pleading standard. As a consequence, the opinion keeps very much alive the circuits' disparate interpretations of …

Promoting, Prescribing, And Pushing Pills: Understanding The Lessons Of Antipsychotic Drug Litigation, Douglas Mossman Md, Jill L. Steinberg

Faculty Articles and Other Publications

Ineffectiveness of prescription drugs, hidden drug hazards, and advertising violations have led to several drug recalls and numerous lawsuits against pharmaceutical companies in recent years. These suits have involved several varieties of medications, but psychoactive medications have figured especially prominently. A recent $1.4 billion settlement by Eli Lilly & Company related to improper promotion of its top-selling drug olanzapine included the largest individual corporate criminal fine in U.S. history.

Improper promotion is far from the sole reason why olanzapine and other “second-generation” antipsychotic (SGA) drugs have become so successful. Rather, the widespread adoption of SGAs represents a collective judgment error …

The Story Of Hewlett-Packard, Barbara Black

Faculty Articles and Other Publications

With the development of the modern corporation, corporate boards have been the locus of corporate authority, and particularly since the 1980s, boards and their performance have been under intense scrutiny. Nevertheless, corporate law has not developed a consistent theory for what boards are supposed to do; instead, it sends mixed messages about the functions and expectations of boards and the appropriate people to sit on them. The HP saga illustrates some of the dilemmas faced by directors confronted by these competing pressures.

Protecting The Retail Investor In An Age Of Financial Uncertainty, Barbara Black

Faculty Articles and Other Publications

This essay, originating in a presentation made at the University of Dayton School of Law's Fallout from the Bailout Symposium on March 20, 2009, first sets forth some comparisons between other recent financial crises and the 2008 financial meltdown. It then provides an assessment of the SEC's role during the financial crisis and concludes with a review of the key provisions of the Obama Administration's proposed financial regulatory reform that affect the SEC and investor protection. The Obama proposal offers no redesign of the SEC, relying instead on SEC Chairman Mary Schapiro's commitment to re-energize and re-commit the agency to …

Eliminating Securities Fraud Class Actions Under The Radar, Barbara Black

Faculty Articles and Other Publications

At least since Basic, Inc. v. Levinson, the business community and many influential scholars have challenged the existence of the securities fraud class action on a variety of grounds. Recently, two proposals have been advanced to "fix" the problem of "abusive" securities fraud class actions. One proposal requires arbitration of all securities fraud class actions; the other eliminates the corporate defendant in most actions. Proponents assert that shareholders should have the right to adopt these proposals through amendment of the company's certificate of incorporation. In reality, adoption of either proposal would substantially curtail, if not eliminate, the securities fraud class …

Reputational Damages In Securities Litigation, Barbara Black

Faculty Articles and Other Publications

This short paper, originating in remarks made at the Institute for Law and Economic Policy's 15th Annual Conference on Compensation of Plaintiffs in Mass Securities Litigation, addresses an issue that has surfaced post-Dura Pharmaceuticals: can investors recover damages resulting from declines in stock price attributable to the market's reassessment of the integrity of management or the corporation's internal controls? Some finance scholars label these damages as non-recoverable 'collateral damage' that are not attributable to the original fraudulent disclosure. I argue that this position is based on a mischaracterization of the original fraudulent disclosure and that there is no basis in …

To Save State Residents: States' Use Of Community Property For Federal Tax Reduction, Stephanie Mcmahon

Faculty Articles and Other Publications

This essay analyzes the forces that led five common law states to adopt community property regimes between 1939 and 1947. Focusing on Oklahoma, the first state to switch, this article traces these laws from initial proposals through their repeal after Congress enacted nationalized income-splitting in 1948. Earlier studies have focused on the impact of these laws, primarily on wives as secondary earners within families, and not on their development. From the various political and social forces precipitating this trend, this study explores the actual reasons states adopted these regimes and shows that an economic goal, namely reducing married couples' federal …

Shining The Bright Light On Police Interrogation In America, Mark A. Godsey

Faculty Articles and Other Publications

This article reviews Richard A. Leo’s book 'Police Interrogation and American Justice.' Prior to entering legal academia, Leo served as an associate professor of psychology and criminology, and performed groundbreaking empirical research into how police interrogators obtain confessions and how their interrogation techniques affect suspects. His body of work shines the bright light on police interrogation in American today. Leo depicts the values and structure of interrogation in a way that few, outside of the actual subjects/victims of interrogation, fully understand. Although I do not agree with all of his conclusions and proposed reforms, his work convincingly raises a point …

Law With A Life Of Its Own: The Development Of The Federal Income Tax Statutes Through World War I, Stephanie H. Mcmahon

Faculty Articles and Other Publications

This manuscript examines the development of the federal income tax within the United States fiscal system from the founding of the nation through World War I. The study reveals that, although the tax had become a permanent feature of the tax system by World War I, congressional debates had focused primarily on whether there should be an income tax as opposed to how it should or would operate in practice. This paper argues that the technical aspects of this tax received surprisingly little congressional attention because when the tax was originally passed it was a marginal revenue measure. Laden with …

'Steel In The Ground': Greening The Grid With The Iutility, Joseph P. Tomain

Faculty Articles and Other Publications

As the United States addresses climate change through carbon reduction strategies, it must focus on the two major parts of our energy portfolio - oil and electricity. Electricity is a central focus because over one-half of all electricity generated is derived from coal-burning power plants, which are notoriously dirty. Other cleaner and renewable sources of electricity, such as wind and solar power, are available. However, over the last hundred years, the electricity industry has been constructed to serve large-scale, centralized and capital-intensive coal and nuclear plants.

There are good economic reasons for building large power plants. Economies of scale can …