Law Commons^™

The Section 11 Due Diligence Defense For Director Defendants, Tony Rodriguez, Karen Petroski

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This article is about the directors’ due diligence affirmative defense to a claim under Section 11 of the Securities Act of 1933.1 Section 11 creates a due diligence defense for directors and several categories of defendants, including accountants and underwriters.2

The Rhetoric Of Symmetry, Karen Petroski

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References to the concept of symmetry have appeared in judicial opinions, advocacy efforts, and scholarly commentary throughout American legal history. But for every legal writer who invokes the concept as a logical or moral ideal, there is another who dismisses it as a formalistic distraction or an arid illusion. What is more, although legal writers virtually always use the term “symmetry” as if its meaning were self-evident, in fact they have used the same term to refer to a variety of distinct concepts, each with its own ambiguities.

Assuming Responsibility: Thomas F. Eagleton, The Senate And The Bombing Of Cambodia, Joel K. Goldstein

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The past has a way of repeating itself. Events may not reoccur in the precise manner previously experienced; yet, the pattern often is sufficiently familiar to resemble one encountered before. For those who experienced the Vietnam years, the war in Iraq carries some feeling of “déjà vu all over again.”[1] There are differences, to be sure, yet a familiar pattern emerges—a failed discretionary war on foreign shores, executive use of manipulated intelligence to build support, the parade of shifting rationales offered to replace those exposed as unconvincing, the presidential deceit and dissembling, the legislative abdication.

Thomas F. Eagleton spent the …

Days Without Immigrants: Analysis And Implications Of The Treatment Of Immigration Rallies Under The National Labor Relations Act, Michael C. Duff

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The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages.

Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning …

Thirty Years Of Solicitude: Antitrust Law And Physician Cartels, Thomas L. Greaney

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Over the last thirty years the Federal Trade Commission and the Department of Justice have challenged dozens of physician cartels, networks, and other arrangements that they alleged constituted price fixing or other restraints of trade under the antitrust laws. In addition, the antitrust agencies have issued numerous advisory opinions, published detailed statements of enforcement policy, and made dozens of public statements on the issue of physician collaboration. The puzzle explored in this essay is why the government's deployment of unparalleled enforcement resources has not curtailed physician attempts to engage in collective bargaining and other attempts to restrain price competition. It …

Toward A Policy Of Heterogeneity: Overcoming A Long History Of Socioeconomic Segregation In Housing, Peter W. Salsich

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This article focuses on the exclusionary effects of land use regulation on housing availability and cost. Recent research by economists and others highlighting such effects is examined. The histories of parallel efforts to provide housing for low- and moderate-income families as well as persons with disabilities are reviewed. The article recommends that legislation be enacted that elevates affordable housing for low- and moderate-income to a level of national concern similar to national policies favoring efficient transportation, as well as protecting coastal and wetland areas and endangered species.

The Health Care Choice Act: The Individual Insurance Market And The Politics Of 'Choice', Elizabeth Pendo

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Traditionally, employer-sponsored group insurance plans have been the backbone of health insurance coverage in the United States. While it is still true that most Americans get their health insurance through their employment, the erosion of employer-sponsored health insurance has increased the ranks of the uninsured and pushed more workers, retirees and their families into the individual insurance market. In 2005, for example, nine percent of the population, or nearly 27 million people, turned to individual policies for health insurance coverage.

The Health Care Choice Act of 2005 (the "Act") currently before Congress aims to reform perceived problems in the individual …

Using Innovative Technologies To Analyze For Similarity Between Musical Works In Copyright Infringement Disputes, Yvette Joy Liebesman

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Courts continue to struggle with discerning the level of substantial similarity between musical compositions in infringement analyses, which is related to their difficulty in determining the portion that is available for the public to use, and where that permission stops. This paper argues that, under the current policies regarding copyright protection and unauthorized copying, the current test is inadequate and a new infringement test should be considered. Two alternatives are proposed. The first test uses objective mapping of a song’s artistic elements. The second considers the link between wave motion theory of physics and music and proposes comparing the mathematical …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

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The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

How To Think About Voter Fraud (And Why), Chad Flanders

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In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything.

The first part of my …

Bush V. Gore And The Uses Of 'Limiting', Chad Flanders

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My comment looks at the debate in the 6th Circuit case Stewart v. Blackwell in light of the history of the use of "limiting language" by the Supreme Court. I catalog the Court's past uses of limiting language, and distinguish between the Court's several uses of limiting language. Against those who defend the limiting language of Bush v. Gore as simply an example of innocuous minimalism, I report my findings that "limiting" is always used by the Court to nullify a principle that decided a previous case. Additionally, the Court has never, prior to Bush, used limiting language to limit …

The Road From Massachusetts To Missouri: What Will It Take For Other States To Replicate Massachusetts Health Reform?, Sidney D. Watson, Timothy Mcbride, Heather Bednarek, Muhammad Islam

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In April 2006, the Massachusetts Legislature passed Chapter 58 of the Acts of 2006, An Act Providing Access to Affordable, Quality, Accountable Health Care, sweeping health reform legislation designed to achieve nearly universal health insurance coverage.¹ While Massachusetts is not the first state in recent years to enact legislation intended to achieve near-universal coverage, its efforts have attracted the most national attention and the most notice from other states interested in duplicating the Massachusetts Model.

Fortuitous political and budgetary circumstances converged in Massachusetts to move reform forward. First, stakeholders and elected officials worked together over a number of years …

Gender Dimensions Of Biotechnology Policy And Trade, Constance Z. Wagner

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Gender issues in biotechnology policy and trade are rapidly emerging as some of the most interesting and challenging within these fields. Gender issues have been identified in three important areas impacted by biotechnology, namely agriculture, traditional knowledge, and health. The policy discussion on these matters is still in its early stages and more research will be needed in order to formulate approaches that adequately incorporate a gender perspective. Gendered aspects of biotechnology also raise concerns in international trade law, which have not yet been addressed in the current legal framework at any level, including the World Trade Organization (“WTO”) regime. …

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

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A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Plea-Bargaining, Negotiating Confessions And Consensual Resolution Of Criminal Cases, Stephen C. Thaman

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This report explores the various types of consensual procedures that make up the procedural arsenals of modern criminal justice systems and if and how they have contributed to procedural economy in the respective country. It discusses whether or not important procedural principles have been compromised, undermining the legitimacy of the criminal justice system.

Penal Court Procedures: Doctrinal Issues, Stephen C. Thaman

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Volume III: This is an encyclopedia entry on doctrinal issues in penal court procedures.

Polluting Medical Judgment? False Assumptions In The Pursuit Of False Claims Regarding Off-Label Prescribing, Sandra H. Johnson

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Over half of the FDA-approved prescription medications taken by patients are prescribed for a different purpose, in a higher or lower dose, for a discrete population, or over a longer period of time than that for which the drug was approved. Safety and efficacy concerns attract the most attention; but critical benefits in fostering innovation and providing patients with medications that may be uniquely effective for them are often overlooked.

The current dominant public policy response to off-label prescribing addresses this practice as a particular breed of financial conflicts of interest in which pharmaceutical firms pollute medical judgment by appealing …

Striving For Equality, But Settling For The Status Quo In Health Care: Is Title Vi More Illusory Than Real?, Ruqaiijah A. Yearby

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Prior to 1964, racial segregation and discrimination in health care was government funded under the Hospital Survey and Construction Act, better known as the Hill-Burton Act. Specifically, section 622(f) of the Hill- Burton Act proscribed federal funding for “separate but equal” health care services. The United States tried to put an end to racial discrimination in the health care system by intervening in a private action that challenged the constitutionality of the Hill-Burton Act and with the enactment of Title VI of the Civil Rights Act of 1964, which banned racial discrimination in health care for institutions receiving federal funding. …

Using An Online Auction To Sell Article 9 Collateral, Michael Korybut

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This short article discusses selected issues under Article 9 of the Uniform Commercial Code with respect to a secured party using an online auction like eBay to sell repossessed collateral. In particular, the article analyzes certain potential limitations imposed by Article 9's commercial reasonableness standard and its notice of sale requirement.

The Good, The Bad, Or The Indifferent: '12 Angry Men' In Russia, Part Of Symposium: The 50th Anniversary Of '12 Angry Men', Stephen C. Thaman

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Sidney Lumet’s 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, …

Legality And Discretion, Stephen C. Thaman

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Volume II: This is an encyclopedia entry on legality and discretion.

Consensual Penal Resolution, Stephen C. Thaman

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Volume I: This is an encyclopedia entry on consensual penal resolution.

Guilty Bystanders, Chad Flanders

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There is a part o f Martin Luther King, Jr. 's Letter from Birmingham Jail that always catches me up short, and which I now think o f as at the heart o f the essay: not King's civil disobedience, not his claim that an unjust law is not a law, but his anger at the character he termed the "white moderate." 1 It was bad, King said, when the public called him and his allies "niggers" and when the police hosed them down in the street. But what really pained King was that so many well-meaning whites stood by …

Foreword, Joel K. Goldstein

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Thomas F. Eagleton was an original. Many found him to be one of the most compelling and admirable people they had ever encountered. That was certainly my experience as I came to know him during the last few years of his life. And he certainly made a strong, favorable impression on the students we taught together at Saint Louis University School of Law in our seminar on the Presidency and the Constitution.

Foreword, Joel K. Goldstein

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Few cases in American history have engendered such controversy as has the Supreme Court’s decision in Roe v. Wade.1 Since its issuance in January 1973, scholars in various disciplines, as well as lay people, have subjected the decision to vigorous debate. That discussion continues in a host of fora, but not in the pages which follow in this volume.

Book Review: Reviewing Susan Starr Sered And Rushike Fernandopulle, Uninsured In America (2007), Elizabeth Pendo

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Book Review of Susan Starr Sered and Rushike Fernandopulle, Uninsured in America (2007).

Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders

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My paper deals with two subject areas - deliberative democracy theory and election law - that have had surprisingly little contact with another. My paper tries to remedy this lacuna by looking at how the two fields intersect and can contribute to the understanding of one another. In particular, I look in detail at a particularly prominent proposal by two political theorists, Bruce Ackerman and James Fishkin's Deliberation Day, and how the aims of that proposal might be frustrated by the present structure of American election law. I argue that because they fail to take into account certain structural features …

Early Panel Announcement, Settlement And Adjudication, Samuel P. Jordan

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Federal appellate courts have significant discretion to set the internal policies that govern the appeals process, and they have used that discretion to institute policies designed to combat increasing caseloads. This Article takes a close look at one such policy: early announcement of panel composition in the D.C. Circuit Court of Appeals. In stark contrast to every other circuit, the D.C. Circuit announces panel composition to litigants in civil appeals well in advance of oral argument, and it does so at least in part to encourage settlement and control the court's workload. This Article concludes that although there are indications …

Teaching Selected Ethical Issues In Bankruptcy, Michael Korybut

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Both consumer and business bankruptcies present numerous ethical questions. Like any lawyer, the bankruptcy attorney must be familiar with a variety of ethics codes and rules, such as the 1969 ABA Model Code of Professional Responsibility or the 1983 ABA Model Rules of Professional Conduct. Further, the Bankruptcy Code has a number of provisions that raise ethical questions. Accordingly, when the author teaches his Bankruptcy survey course, he devotes time in a number of classes to ethical issues. In particular, the author spends a good part of one class on Bankruptcy Code section 327(a) which prohibits an attorney representing the …

Article 9'S Incorporation Strategy And Novel, New Markets For Collateral: A Theory Of Non-Adoption, Michael Korybut

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Online auctions like eBay are heralded widely as efficient, robust markets through which millions of businesses and people have sold billions of dollars of all types of property. Yet U.C.C. Article 9 secured parties apparently are only slowly and anemically adopting eBay or other online auctions to sell repossessed property (collateral) and are sticking instead to conventional, traditional sale methods. The apparent slow and anemic adoption of eBay and other online auctions by Article 9 secured creditors suggests a failure of the commercial reasonableness standard's incorporation strategy of new, efficient markets and its price-maximization goal. The Article proposes a non-adoption …