Law Commons^™

Judicial Review Of Ncaa Eligibility Decisions: Evaluation Of The Restitution Rule And A Call For Arbitration, Stephen F. Ross, Richard T. Karcher, S. Baker Kensinger

Journal Articles

Courts have held that the general principles of judicial non-interference with the decisions of private associations do not apply where a dominant organization’s decisions effectively prevent individuals from participating in an important activity, including a profession or sports. Although the bylaws of the National Collegiate Athletic Association (NCAA) give it unfettered power, it remains subject to judicial review when its decisions violate constitutional or statutory limits, or principles of contract law, or when they are inconsistent with the organization’s own rules. As such, general principles of equity should freely permit an athlete to obtain injunctive relief where the applicable standards …

Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland

Journal Articles

This Article discusses the author's experience with effectively teaching a white collar crime course.

The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Bridges Copeland

Journal Articles

This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been …

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa

Journal Articles

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Journal Articles

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …

The Origin Of Parental Rights: Labor, Intent, And Fathers, Dara Purvis

Journal Articles

Most theories of parentage fail to explain the genesis of the right to parent - for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized …

The Role Of Comparative Law In Shaping Corporate Statutory Reforms, Marco Ventoruzzo

Journal Articles

This Essay discusses how comparative law played and plays a role in the statutory development of corporate laws. The influence of laws of other systems on the development of statutory law is common, explicit, and represents a tradition that accompanied legal reforms since the very beginning of the development of legislation.

Focusing on modern corporate law, I argue (but the argument could be extended to many other legal fields) that it is necessary to distinguish two basic ways in which comparative law influences legal reforms in one particular jurisdiction. The first one is through regulatory competition among different systems. In …

Partitioning And Rights: The Supreme Court’S Accidental Jurisprudence Of Democratic Process, James A. Gardner

Journal Articles

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, …

A Reflection On Erisa Claims Administration And The Exhaustion Requirement, James A. Wooten

Journal Articles

This essay, prepared in connection with the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking?, examines ERISA’s regime for administering benefit claims and, in particular, the requirement that participants exhaust their plan’s review procedures before filing suit to recover benefits. Like other key elements of ERISA’s claims regime, the exhaustion requirement is a judicial creation that is not articulated in ERISA’s text. Interestingly, former congressional staffers who attended the Symposium said they assumed participants would be required to exhaust plan review procedures but failed to include such a requirement in the legislation. After reviewing the development of …

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Journal Articles

Environmental law is riddled with symbolisms of protecting the air we breathe, the water we drink, and the environment in which we live. Sometimes these symbols are simply inherent characteristics of the legislation or policy as their very creation symbolizes or represents the politico’s stance on an issue. Other times, the legislation or policy is used primarily as a symbol, without ever addressing the issue or effectuating change, sometimes referred to as symbolic politics. In this research, we apply the theory of symbolic politics to New York State’s decade-old policy on environmental justice and postulate that although the policy has …

Stuck: Fictions, Failures And Market Talk As Race Talk, Athena D. Mutua

Journal Articles

ClassCrits is a network of scholars and activists interested in critical analysis of law, the economy, and inequality. We aim to better integrate the rich diversity of economic methods and theories into law by exploring and engaging a variety of heterodox economic theories; including reviving, from the margins and shadowy past, discussions of class relations and their possible relevance to the contemporary context.

As a participant in the ClassCrits VI conference entitled, “Stuck in Forward: Debt, Austerity and the Possibilities of the Political”, I sat there at the end of the first day and puzzled over the fact that our …

Legal Education In Crisis, And Why Law Libraries Are Doomed, James G. Milles

Journal Articles

The dual crises facing legal education - the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large - have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon …

Mitigating The Impacts Of The Renewable Energy Gold Rush, Amy Wilson Morris, Jessica Owley

Journal Articles

Solar energy developers have turned their sights on California’s deserts. Since 2010, local, state, and federal agencies have approved nearly 9,000 megawatts (MW) of solar energy projects in the California desert, including more than 3,000 MW on public lands. The 9,000 MW of approved projects (if all are developed) would require approximately 63,000 acres of total desert land with 21,000 federal acres. The scale of proposed landscape change is unprecedented. Solar energy facilities can be more land-intensive than other forms of energy generation. Because of concern about the potentially devastating impacts of climate change, most major environmental groups have expressed …

Understanding Behavioral Antitrust, Avishalom Tor

Journal Articles

Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

An Outrageous Response To "You're Fired!", William Corbett

Journal Articles

No abstract provided.

The Anomalous Interaction Between Code And Statute--Lessor's Warranty And Statutory Waiver, Melissa T. Lonegrass

Journal Articles

No abstract provided.

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …

Green Siting For Green Energy, Amy Wilson Morris, Jessica Owley, Emily Capello

Journal Articles

No abstract provided.

20 Years Of Domestic Violence Advocacy, Collaborations, And Challenges: Reflections Of A Clinical Law Professor, Suzanne E. Tomkins

Journal Articles

No abstract provided.

From Vacant Lots To Full Pantries: Urban Agriculture Programs And The American City, Jessica Owley, Tonya Lewis

Journal Articles

This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to …

Conservation Without Nature: The Trouble With In Situ Versus Ex Situ Conservation, Irus Braverman

Journal Articles

Although understudied in academia and mostly unheard of by the general public, the in situ/ex situ dichotomy has shaped — and still very much shapes — the development of the nature conservation movement and its institutional alliances in the last few decades. Latin for “in” and “out” of place, the in/ex situ dichotomy often stands for the seemingly less scientific dichotomy between wild nature and captivity. Drawing on ethnographic engagements with zoo professionals and wildlife managers, this article explores the evolution of the in situ/ex situ dyad in nature conservation, which traverses the worlds of dead and live matter, artificilia …

The Evil Waiter Case, Luis E. Chiesa

Journal Articles

No abstract provided.

Two Myths About The Alien Tort Statute, Anthony J. Bellia, Bradford R. Clark

Journal Articles

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. …

Personal Guarantees And Sureties Between Commercial Law And Consumers In The United States, Christoph Henkel

Journal Articles

Guaranties and suretyships reduce the risk of default and today remain essential arrangements in many commercial and consumer transactions. A guarantor or surety promises to pay for the debt of a third party and may become primarily liable on that debt. Despite the significance of such a promise and the resulting obligation, U.S. law does not clearly distinguish between a guarantor and surety in a consumer or commercial context. This is of particular relevance, because in a consumer context a guaranty often has a gratuitous or sentimental element and a guarantor may not always be fully aware of the risks …

Where Schools Close In Chicago, Randall K. Johnson

Journal Articles

This article tests the assumption that schools close disproportionately in disadvantaged parts of the city in order to explain where schools close in Chicago. It does so by introducing a new CPS closings data set.This data set sheds some light on the phenomenon by identifying 130 schools that closed over time, twenty-seven ZIP codes that experienced CPS closings, and three demographic characteristics of each ZIP code. As a result, the dataset helps to explain how CPS closings relate to race, income, and location.

The Conceits Of Our Legal Imagination: Legal Fictions And The Concept Of Deemed Authorship, Alina Ng Boyte

Journal Articles

Legal fictions contain embedded nuggets of information about social reality and reveal important aspects of human society. However, the use of legal fictions may also obscure important information or fundamental questions about law and its role in shaping society. These fictions become institutionalized without a clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for future legal development, potentially resulting in legal rules that are completely dissociated from social, historical, or cultural reality. This article explores the concept of deemed authorship as a legal fiction …

Who’S Afraid Of The Big Bad Tax-Free Liquidating Distribution? Ideological Debates On Taxation And The Repeal Of General Utilities, Martin Edwards

Journal Articles

The General Utilities doctrine, named for the 1935 Supreme Court decision allowing a corporation to distribute appreciated assets to shareholders without reporting a taxable gain, was once known as one of seven fundamental principles of American corporate taxation. The doctrine’s popularity reached its peak in 1954, when Congress formally incorporated it into the Internal Revenue Code. Despite this esteemed position among tax-law doctrines, General Utilities was routinely criticized because, among other things, it allowed a situational (and arbitrary) reprieve from “double taxation” of corporate income. Corporate income is functionally taxed twice in the sense that the corporation owes tax on …

Challenging Presumed (Im)Morality: A Personal Narrative, Angela Mae Kupenda

Journal Articles

This narrative essay is about presumptions of (im)morality in academic settings. Such biased presumptions affect our abilities, even as educators, to work together and foster a society built on principles of justice that could help us work, live, and play better together. Learning to understand, work with, live near, and care about others are goals to which many of us would say we aspire. As law professors, we consider collegiality to be one of the factors we use in evaluating candidates for hiring and promotion decisions. However, these evaluations may rest not on the worthiness or respected humanity of others, …

Will The South Rise Again And, If So, In What Form?: Lessons From Latcrit About Resisting The Fear Of Cultural Understanding, Angela Mae Kupenda

Journal Articles

Through lessons learned from LatCrit 2013, this essay is hoping to evoke the missing sentiment of understanding and equality by signifying that the south that will rise again will be a south that is transformed, as Dr. Martin Luther King said “into an oasis of freedom and justice,” by moving out of its fears of understanding and moving to a far greater level of cross-cultural understanding.