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Full-Text Articles in Law

Diminishing Sovereignty: How European Privacy Law Became International Norm, Mckay Cunningham Jan 2013

Diminishing Sovereignty: How European Privacy Law Became International Norm, Mckay Cunningham

Faculty Scholarship

There is a tendency to forget how young the Internet is. Modern computing and data trafficking are not even historical pre-teens. The personal computer was not widely available to consumers until the late 1970s, and the Internet was not fully commercialized until 1995.1 Less than two decades later, seventy-six percent of Americans own at least one personal computer and seventy-seven percent regularly rely on the Internet.2 Increasingly, businesses, schools, news organizations, and financial institutions offer their services exclusively online.3 The U.S. Department of Homeland Security reports a high level of integration and reliance, noting that “our ...


The International Criminal Court, Ten Years Later: Appraisal And Prospects, Joseph M. Isanga Jan 2013

The International Criminal Court, Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Faculty Scholarship

On March 14, 2012, ten years after the International Criminal Court (ICC) became operational, and with around $900 million spent, the ICC delivered its first judgment. It has issued only thirteen arrest warrants. Is the ICC too slow and too expensive? The Kampala Review Conference held in 2010, seven years after the Rome Statute of the International Criminal Court (Rome Statute) entered into force, could have probed a plethora of questions. Instead, it was a limited stocktaking exercise, leaving many issues unresolved. In 2012, the ICC marked ten years since the Rome Statute entered into force. Seizing upon this milestone ...


President Obama And The Framers' Presidency, John Yoo Jan 2013

President Obama And The Framers' Presidency, John Yoo

Faculty Scholarship

An essay is presented on U.S. President Barack Obama, American constitutional law, and the beliefs of the Framers of the U.S. Constitution in regards to the powers of the executive branch as of January 2013. Obama's apparent focus on domestic policy during his first term in office is addressed, including his administration's work in delaying the construction of aerospace company Boeing Co.'s plant in a right-to-work state, as well as the construction of the Keystone XL pipeline.


The Crucial But (Potentially) Precarious Position Of The Chief Compliance Officer, Deborah A. Demott Jan 2013

The Crucial But (Potentially) Precarious Position Of The Chief Compliance Officer, Deborah A. Demott

Faculty Scholarship

This Article, written for a symposium on compliance issues in financial-services firms, focuses on the role of the chief compliance officer (“CCO”). Contrasting the position with that held by a firm’s general counsel or Chief Legal Officer (CLO), the article argues that a CCO’s position holds distinct challenges. Additionally, although internal compliance systems and personnel may be characterized as functional substitutes for external regulation, assessing the strengths and weaknesses of internal compliance requires a willingness to look deep within firms. The article argues that the law and regulation may enhance firms’ incentives to invest in effective internal compliance ...


Strengthening Financial Reporting: An Essay On Expanding The Auditor’S Opinion Letter, James D. Cox Jan 2013

Strengthening Financial Reporting: An Essay On Expanding The Auditor’S Opinion Letter, James D. Cox

Faculty Scholarship

Users of financial statements, foremost of which are investors, have a voracious appetite for information that better enables them to assess the financial position and performance of the reporting firm. Even though financial statements purport to address their needs, because the statements, which are prepared by the firm’s managers, conceal a range of managerial estimates, assumptions, judgments, and choices, investors are deprived of the most fundamental kernel of information they seek, namely the overall quality of the financial reports themselves. In this Article, the author sets forth several modest steps that would enhance the overall quality of financial reporting ...


Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman Jan 2013

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Faculty Scholarship

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to ...


Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington Jan 2013

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Greensboro And Beyond: Remediating The Structural Sexism In Truth And Reconciliation Processes And Determining The Potential Impact And Benefits Of Truth Processes In The United States, Peggy Maisel Jan 2013

Greensboro And Beyond: Remediating The Structural Sexism In Truth And Reconciliation Processes And Determining The Potential Impact And Benefits Of Truth Processes In The United States, Peggy Maisel

Faculty Scholarship

Over the last 35 years approximately forty truth commissions have investigated human rights violations and abuses in a wide range of countries and communities. Each of these forty commissions provides different lessons on how investigating and testifying about past abuse can lead to healing and change. I have participated in two of the more remarkable Truth and Reconciliation processes, the first as an observer, the other as an advisor. The former is perhaps the most widely known and discussed TRC process, the one which took place in South Africa from 1996 to 1998 that examined the entire apartheid era in ...


Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young Jan 2013

Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young

Faculty Scholarship

No abstract provided.


Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2013

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting ...


Reverse-Commandeering, Margaret Hu Jan 2013

Reverse-Commandeering, Margaret Hu

Faculty Scholarship

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state ...


United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young Jan 2013

United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young

Faculty Scholarship

The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on ...


Internal Compliance Officers In Jeopardy?, Deborah A. Demott Jan 2013

Internal Compliance Officers In Jeopardy?, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz Jan 2013

Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz

Faculty Scholarship

In the modern financial architecture, financial services and products increasingly are provided outside of the traditional banking system—and thus without the need for bank intermediation between capital markets and the users of funds. Most corporate financing, for example, no longer is dependent on bank loans but raised through special-purpose entities, money-market mutual funds, securities lenders, hedge funds, and investment banks. This shift, referred to as “disintermediation” and described as creating a “shadow banking” system, is so radically transforming finance that regulatory scholars need to rethink their assumptions. Two of the fundamental market failures underlying shadow banking—information failure and ...


Don’T ‘Screw Joe The Plummer’: The Sausage-Making Of Financial Reform, Kimberly D. Krawiec Jan 2013

Don’T ‘Screw Joe The Plummer’: The Sausage-Making Of Financial Reform, Kimberly D. Krawiec

Faculty Scholarship

This Article examines agency-level activity during the preproposal rulemaking phase—a time period about which little is known despite its importance to policy outcomes—through an analysis of federal agency activity in connection with section 619 of the Dodd–Frank Act, popularly known as the Volcker Rule. By capitalizing on transparency efforts specific to Dodd–Frank, I am able to access information on agency contacts whose disclosure is not required by the Administrative Procedure Act and, therefore, not typically available to researchers.

I analyze the roughly 8,000 public comment letters received by the Financial Stability Oversight Council in advance ...


Founding Legal Education In America, Paul D. Carrington Jan 2013

Founding Legal Education In America, Paul D. Carrington

Faculty Scholarship

No abstract provided.


On “The Lure Of Strike”, Charles J. Dunlap Jr. Jan 2013

On “The Lure Of Strike”, Charles J. Dunlap Jr.

Faculty Scholarship

This commentary is in response to the special commentary, “The Lure of Strike” by Conrad Crane published in the Summer 2013 issue of Parameters (vol. 43, no. 2).


The Bankruptcy-Law Safe Harbor For Derivatives: A Path-Dependence Analysis, Steven L. Schwarcz, Ori Sharon Jan 2013

The Bankruptcy-Law Safe Harbor For Derivatives: A Path-Dependence Analysis, Steven L. Schwarcz, Ori Sharon

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume ...


Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai Jan 2013

Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai

Faculty Scholarship

The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the new ...


Firearm Localism, Joseph Blocher Jan 2013

Firearm Localism, Joseph Blocher

Faculty Scholarship

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to ...


Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller Jan 2013

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.


Correspondents' Reports United States Of America, Chris Jenks Jan 2013

Correspondents' Reports United States Of America, Chris Jenks

Faculty Scholarship

This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.