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Full-Text Articles in Law

Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth G. Thornburg Jan 2008

Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth G. Thornburg

Faculty Scholarship

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U ...


The False Promise Of One Share, One Vote, Grant M. Hayden, Matthew T. Bodie Jan 2008

The False Promise Of One Share, One Vote, Grant M. Hayden, Matthew T. Bodie

Faculty Scholarship

Shareholder democracy has blossomed. The once moribund shareholder franchise is now critical in takeover contests, merger decisions, and board oversight. However, the mechanisms of this vote remain largely undertheorized. In this Article, we use voting rights and social choice theory to develop a new approach to the corporate franchise. Political democracies typically tie the right to vote to the level of a person's interest in the outcome of the election. Corporate democracies, on the other hand, tend to define the requisite institutional interest quite narrowly, and thus restrict the right to vote to shareholders alone. This restriction has found ...


Inheritance Rights Of Nonmarital Children In Late Roman Law, Joshua C. Tate Jan 2008

Inheritance Rights Of Nonmarital Children In Late Roman Law, Joshua C. Tate

Faculty Scholarship

Late Roman legislation regarding the inheritance rights of nonmarital children is a tangled web of seemingly conflicting constitutions. Focusing on the period 371-428 AD, this Article argues that, when two particular Western laws from that era are considered alongside others issued at the same time, it is possible to discern some wider legislative trends that may help to contextualize the different attitudes shown toward nonmarital children. C.Th. 4.6.4 (371), a Western law beneficial to nonmarital children, can arguably be linked with another Western law issued shortly afterward granting a privilege to the daughters of actresses, another disfavored ...


Wives Without Husbands: Marriage, Desertion, & Welfare In New York, 1900-1935, Joanna L. Grossman Jan 2008

Wives Without Husbands: Marriage, Desertion, & Welfare In New York, 1900-1935, Joanna L. Grossman

Faculty Scholarship

No abstract provided.


Punishing Family Status, Jennifer M. Collins, Ethan J. Leib Jan 2008

Punishing Family Status, Jennifer M. Collins, Ethan J. Leib

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support ...


Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn Jan 2008

Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn

Faculty Scholarship

During his two terms as President of Russia, did Vladimir Putin further the net development of a legal culture in Russia? This article is based on public lectures given in late 2007 and early 2008 at Oxford University, the Norwegian Institute of International Affairs (NUPI), and the Kennan Institute at the Woodrow Wilson International Center for Scholars.

This article examines three "windows" into the development of Russia's legal culture under Vladimir Putin: (1) the Second Chechen War; (2) Russian membership in the Council of Europe; and, (3) renewed efforts under Putin at codification of law, as evidenced by the ...


Would It Be Unethical To Dump Radioactive Wastes In The Ocean? The Surprising Implications Of The Person-Altering Consequences Of Policies, Gregory S. Crespi Jan 2008

Would It Be Unethical To Dump Radioactive Wastes In The Ocean? The Surprising Implications Of The Person-Altering Consequences Of Policies, Gregory S. Crespi

Faculty Scholarship

This article examines whether policy-making is constrained by ethical obligations to future generations. While there is broad consensus that we have ethical obligations to implement policies that benefit distant future generations, the author deems it impossible to formulate a satisfactory rationale for this position based solely on conventional ethical premises. The author reaches this conclusion after considering the ethical implications of the pervasiveness of person-altering consequences.


The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman Jan 2008

The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman

Faculty Scholarship

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on ...


Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez Jan 2008

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Faculty Scholarship

This article addresses the unique legal, policy, and ethical questions that arise when patients travel to foreign jurisdictions for medical care. A growing number of patients are leaving the United States, and employers, insurers, and even government payors are beginning to explore whether they can reduce spending by utilizing hospitals and physicians in developing countries. Because this is a dramatic leap, it has generated countless media stories, and has drawn attention from the WHO, WTO, World Bank, and U.S. Senate - many of which believe so-called medical tourism may transform health care here and abroad.

Despite this attention, the market ...


The Curious Appellate Judge: Ethical Limits On Independent Research, Elizabeth G. Thornburg Jan 2008

The Curious Appellate Judge: Ethical Limits On Independent Research, Elizabeth G. Thornburg

Faculty Scholarship

Appellate judges in the twenty-first century find themselves in a world in which litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has turned ...


Marilyn Monroe’S Legacy: Taxation Of Postmortem Publicity Rights, Joshua C. Tate Jan 2008

Marilyn Monroe’S Legacy: Taxation Of Postmortem Publicity Rights, Joshua C. Tate

Faculty Scholarship

In an April 2008 essay in the Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. This response explains that, although Gans, Crawford, and Blattmachr are correct that making publicity rights devisable could have adverse tax consequences for some estates, those consequences are not as far-reaching as might be imagined, and the legislative solution they propose will not in fact solve the problem. Estate tax will not be levied on the estates of long-deceased celebrities like Marilyn Monroe ...


Codification Of Late Roman Inheritance Law: Fideicommissa And The Theodosian Code, Joshua C. Tate Jan 2008

Codification Of Late Roman Inheritance Law: Fideicommissa And The Theodosian Code, Joshua C. Tate

Faculty Scholarship

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in ...


Choice Of Law In Veil Piercing Litigation: Why Courts Should Discard The Internal Affairs Rule And Embrace General Choice Of Law Principles, Gregory S. Crespi Jan 2008

Choice Of Law In Veil Piercing Litigation: Why Courts Should Discard The Internal Affairs Rule And Embrace General Choice Of Law Principles, Gregory S. Crespi

Faculty Scholarship

When a corporate creditor seeks to "pierce the corporate veil" to hold an individual shareholder personally liable for the corporation's obligations, a question is often presented as to which state's body of law should be applied to resolve the controversy. Most courts currently regard such a controversy as primarily an "internal affair" between the corporation and the shareholder that should be resolved by law of the state of incorporation. This article argues that this is an undesirable result that is based primarily upon an incorrect judicial interpretation of Section 307 of the Restatement (Second) of Conflicts of Law ...


Christianity And The Legal Status Of Abandoned Children In The Later Roman Empire, Joshua C. Tate Jan 2008

Christianity And The Legal Status Of Abandoned Children In The Later Roman Empire, Joshua C. Tate

Faculty Scholarship

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation ...


The Quad (The 2008 Alumni Magazine), Southern Methodist University, Dedman School Of Law Jan 2008

The Quad (The 2008 Alumni Magazine), Southern Methodist University, Dedman School Of Law

The Quad (Law Alumni Magazine), 1988-present

• Our 3 Fortune 50 CEOs
• Dedman Match & Historic Endowment
• Justice Thomas Speaks at 2007 AJEI Summit
• What Does Medical Tourism Say About the U.S. Healthcare System?
• The Sub-Prime Lending Crisis: How Did We Get Here?


Clarifying The Boundary Between The Parol Evidence Rule And The Rules Governing Subsequent Oral Modifications, Gregory S. Crespi Jan 2008

Clarifying The Boundary Between The Parol Evidence Rule And The Rules Governing Subsequent Oral Modifications, Gregory S. Crespi

Faculty Scholarship

In this article, the author analyzes the rules that govern the legal effectiveness of oral agreements that purport to modify written contracts. The article includes a discussion of four situations that raise difficult questions of whether oral agreements should be regarded as pre-written contract agreements (rather than as subsequent oral modifications) for purposes of the parol evidence rule. The author concludes that no doctrinal changes are called for in the contract formation timing rules currently applicable to these situations unless such changes are accompanied by broader judicial enforcement of no-oral-modification clauses.


Caregiving And The Case For Testamentary Freedom, Joshua C. Tate Jan 2008

Caregiving And The Case For Testamentary Freedom, Joshua C. Tate

Faculty Scholarship

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise ...


International Travel And The Constitution, Jeffrey Kahn Jan 2008

International Travel And The Constitution, Jeffrey Kahn

Faculty Scholarship

This Article makes the case for the fundamental right of U.S. citizens to leave their country and return home again. Surprisingly, Americans do not enjoy such a right. Under current Supreme Court precedents, the right to travel abroad is merely an aspect of liberty that may be restricted within the bounds of due process. The controversial No Fly List is one result. Another is a new rule that went into effect in February 2008, under which all travelers now require the express prior permission of the U.S. Government to board any aircraft or maritime vessel that will enter ...


Voluntarism, Vulnerability, And Criminal Law: A Response To Professors Hills And O'Hear, Ethan J. Leib, Dan Markel, Jennifer M. Collins Jan 2008

Voluntarism, Vulnerability, And Criminal Law: A Response To Professors Hills And O'Hear, Ethan J. Leib, Dan Markel, Jennifer M. Collins

Faculty Scholarship

This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their careful and subtle analysis of that article.

Additionally, it's worth recapitulating what our bottom-line conclusions are so we can better see if there are any practical disagreements with our critics. Summarizing quickly: we support decriminalization in the cases of parental ...


'Disney' Goes Goofy: Agency, Delegation & Corporate Governance, Marc I. Steinberg, Matthew D. Bivona Jan 2008

'Disney' Goes Goofy: Agency, Delegation & Corporate Governance, Marc I. Steinberg, Matthew D. Bivona

Faculty Scholarship

In the wake of the corporate debacles that have occurred in the last decade, there has been an increasing legislative and judicial focus on the reform of corporate governance standards. Such reforms, including the Sarbanes-Oxley Act, sing the praises of independent directors in effectuating meaningful corporate governance. The Delaware courts as well have emphasized the importance of independent directors in the corporate governance framework.

The Delaware Supreme Court’s decision in Disney seems to be a reaffirmance of the business judgment rule as applied to corporate directors; however, the court’s highly-publicized decision ignores a crucial component of the case ...


Russia's Criminal Procedure Code Five Years Out, William Burnham, Jeffrey Kahn Jan 2008

Russia's Criminal Procedure Code Five Years Out, William Burnham, Jeffrey Kahn

Faculty Scholarship

After a long delay in drafting, a new Criminal Procedure Code for Russia was passed in 2001 and went into effect in 2002. The new Code contains some striking innovations, most notably changes at the trial stage, which implement the constitutional requirements of adversarial principles. However, it also retains several throwbacks to the past, particularly its preservation of the formal pretrial investigation, during which evidence is parsed and collected in a dossier, which then dominates the trial of the case. The result is that old and new constantly contend with each other. Implementation of the new adversarial procedures is also ...


Defense Perspectives On Law And Politics In International Criminal Trials, Jenia I. Turner Jan 2008

Defense Perspectives On Law And Politics In International Criminal Trials, Jenia I. Turner

Faculty Scholarship

As international criminal trials become more prominent, a fundamental question persists about their purposes: Are the goals of international criminal trials primarily legal, similar to the objectives of domestic trials, or are they primarily political, such as helping communities heal and compiling an accurate record of the past? Courts and commentators often acknowledge both legal and political purposes of international criminal trials, but fail to prioritize among them. This paper examines the purposes of international criminal trials through the perspectives of an overlooked, but important, participant in these trials¿the defense attorney. Through personal interviews, scholarly articles, and case law ...


Examining The Pipeline: A Contemporary Assessment Of Private Investments In Public Equity ('Pipes'), Marc I. Steinberg, Emmanuel Obi Jan 2008

Examining The Pipeline: A Contemporary Assessment Of Private Investments In Public Equity ('Pipes'), Marc I. Steinberg, Emmanuel Obi

Faculty Scholarship

This article analyzes the practical and theoretical underpinnings as well as recent regulatory developments impacting PIPEs. Specifically, the authors examine the traditional capital financing alternatives, primarily the registered offering and private placement option, the PIPE as a relatively new and emerging alternative to traditional avenues of capital formation, and the recent regulatory changes that are bound to have a tremendous impact on the long-term viability of the PIPE as a means for effectively raising capital. The authors conclude that, on balance, the PIPE, as a distinct capital financing mechanism, may be advantageous to both PIPE investors and affected issuers, particularly ...


The African-American Child Welfare Act: A Legal Redress For African-American Disproportionality In Child Protection Cases, Jessica Dixon Weaver Jan 2008

The African-American Child Welfare Act: A Legal Redress For African-American Disproportionality In Child Protection Cases, Jessica Dixon Weaver

Faculty Scholarship

This article proposes a radical change in the way African-American children and families are handled within the legal system when abuse and neglect are at issue. African-American disproportionality in child protection cases is significant for the United States because documentation shows that African-American children are overrepresented in the child welfare system in forty-eight states, although research shows that there is no difference in the occurrence of child abuse and neglect among the races. The first part of the article presents an overview of disproportionality by presenting the national statistics and research, revealing where racial bias and disparate treatment occurs within ...