Law Commons^™

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

Faculty Journal Articles and Book Chapters

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, I …

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

Faculty Journal Articles and Book Chapters

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 …

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

Faculty Journal Articles and Book Chapters

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 creation …

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

Faculty Journal Articles and Book Chapters

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 …

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

Faculty Journal Articles and Book Chapters

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 …

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

Faculty Journal Articles and Book Chapters

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 …

Straight Acting, Dale Carpenter

Faculty Journal Articles and Book Chapters

This article explores the meaning of “straight acting,” a term one often hears among gay people. How, why, and by whom is it used? What purposes does it serve and what purposes does the reaction to it serve? How does its use by gays compare to the use of the term “acting white” by blacks? And, since this is a law journal, there's the necessary question: what is law's role in straight acting?

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

Faculty Journal Articles and Book Chapters

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 …

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 Journal Articles and Book Chapters

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, and that …

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

Faculty Journal Articles and Book Chapters

No abstract provided.

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

Faculty Journal Articles and Book Chapters

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: the Delaware …

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

Faculty Journal Articles and Book Chapters

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 paper …

Rethinking Recycling, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Subtitle C of the Resource Conservation and Recovery Act (RCRA) establishes the so-called “cradle to grave” regulatory program over hazardous “solid wastes.” Although not obviously wastes, the United States Environmental Protection Agency (EPA) has consistently asserted jurisdiction to regulate some class of recyclable materials under Subtitle C. It has done this through a regulatory definition of “solid waste” that establishes a complex and confusing scheme that includes, excludes, and exempts recyclable materials from regulatory requirements in an almost incomprehensible fashion. In 2008, EPA added to this complexity by promulgating a new set of conditional exclusions that exempts certain reclaimed materials …

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

Faculty Journal Articles and Book Chapters

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 …

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

Faculty Journal Articles and Book Chapters

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 in the …

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

Faculty Journal Articles and Book Chapters

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 the Theodosian …

A Traditionalist Case For Gay Marriage, Dale Carpenter

Faculty Journal Articles and Book Chapters

This article presents an argument for same-sex marriage within traditionalism or Burkeanism school of conservatism. The author begins by describing briefly Burkean conservatism. Second, he sketches, based on that description, a case against the recognition of gay marriages. Third, the author outlines an affirmative argument for same-sex marriage. Fourth, he reconsiders, in the light of those arguments, the Burkean case against same-sex marriage. Finally, he discusses what a Burkean conservative ought to say about the pace and the process for achieving same-sex marriage.

The Enigma Of Standing Doctrine In Texas Courts, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

This Article examines federal and Texas standing doctrine and makes recommendations for the principled application of the traditional non-jurisdictional approach of the procedural defense of standing under Texas law for common law claims and statutory rights of action and for the concomitant restriction of the jurisdictional aspects of standing to litigation brought by private persons and governmental units to enforce public rights or compel the performance of public duties. This Article also explains how the concepts of standing and capacity can be reconciled and harmonized.

The Quest For Number One In College Football: The Revised Bowl Championship Series, Antitrust, And The Winner Take All Syndrome, C. Paul Rogers Iii

Faculty Journal Articles and Book Chapters

Beyond the varying opinions and critiques of the BCS, a more fundamental issue regarding the system is whether it is legal. Specifically, does it violate the antitrust laws? This is not a specious question. The Senate Judiciary Committee conducted hearings on the legality of the BCS in October 2003, and the House Subcommittee on Commerce, Trade, and Consumer Protection conducted similar hearings in December 2005. Another important aspect of the BCS is its prominent place as a visual symptom of America's winner-take-all society. Is extreme competition, where everyone strives to be the best but very few actually achieve that goal, …

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

Faculty Journal Articles and Book Chapters

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.

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 Journal Articles and Book Chapters

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.

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

Faculty Journal Articles and Book Chapters

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 its …

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

Faculty Journal Articles and Book Chapters

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.S. Chamber …

Taming The Beast: Payday Loans, Regulatory Efforts, And Unintended Consequences, Mary B. Spector

Faculty Journal Articles and Book Chapters

This Article examines the payday loan phenomenon, reviews state and federal attempts to regulate it, and explores its most recent appearance under the protection of state CSO laws designed to protect overextended consumers. Part II examines the transaction and the parties involved: what is a payday loan; who makes them; and who are the customers? Part III describes state and federal attempts to regulate payday lending. Part IV explores states' attempts to protect credit-seeking consumers with laws designed to regulate CSOs and the payday loan's emergence between the lines of this regulation. Part V concludes with some thoughts on approaches …

The Antitrust Legacy Of Justice William O. Douglas, C. Paul Rogers Iii

Faculty Journal Articles and Book Chapters

This Article will attempt to further define and refine Justice Douglas' antitrust philosophy by examining his written opinions and writings. It will then attempt to measure that philosophy's effect on the Supreme Court during his tenure and its contemporary impact in the context of the rapidly shifting antitrust doctrine of the last thirty years or so.

Taxation Of Supernormal Returns, David Elkins, Christopher H. Hanna

Faculty Journal Articles and Book Chapters

In the last ten to fifteen years, a number of articles have been written on the differences between a normative income tax system and a normative consumption tax system, with much of the discussion focusing on the taxation of the risk-free rate of return and the risk premium from an investment. As is generally accepted, under certain assumptions an accrual income tax system taxes the risk-free rate of return on capital but does not tax the risk premium, while a cash-flow consumption tax system (or a wage tax system) taxes neither the risk-free rate of return nor the risk premium. …

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

Faculty Journal Articles and Book Chapters

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 class in the …

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

Faculty Journal Articles and Book Chapters

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 …

International Travel And The Constitution, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

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 or leave …

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

Faculty Journal Articles and Book Chapters

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. …