Law Commons^™

Spring 2019 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Spring 2019 issue of the UMass Law Library Newsletter, The Docket.

Corporate Lessons For Public Governance: The Origins And Activities Of The National Budget Committee, 1919–1923, Jesse Tarbert

Seattle University Law Review

There is a peculiar disconnect between the way specialists view the 1920s and the way the decade is understood by non-specialists and the general public. Casual observers tend to view the 1920s as a conservative or reactionary interlude between the watershed reform periods of the Progressive Era and New Deal. Although many scholars have abandoned the traditional view of the 1920s, their work has not yet penetrated the generalizations of non-specialists. Even readers familiar with specialist accounts portraying the New Era as the age of “corporate liberalism” or the “Associative State” tend to view these concepts as just another way ...

Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley

Seattle University Law Review

An introduction to the Berle X symposium, honoring William W. (Bill) Bratton.

Quasi Governments And Inchoate Law: Berle’S Vision Of Limits On Corporate Power, Elizabeth Pollman

Seattle University Law Review

This Berle X Symposium essay gives prominence to distinguished corporate law scholar Adolf A. Berle, Jr. and his key writings of the 1950s and 1960s. Berle is most famous for his work decades earlier, in the 1930s, with Gardiner Means on the topic of the separation of ownership and control, and for his great debate of corporate social responsibility with E. Merrick Dodd. Yet the world was inching closer to our contemporary one in terms of both business and technology in Berle’s later years and his work from this period deserves attention.

“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells

Seattle University Law Review

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This Article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal ...

Adolf Berle During The New Deal: The Brain Truster As An Intellectual Jobber, Robert B. Thompson

Seattle University Law Review

Adolf Berle’s ideas have attained a remarkable longevity in corporate law with an influence exceeding that of any other twentieth century law professor. Participants in the now ten Berle symposia often have framed the discussion of his career as an intellectual history, usually built around the powerful transformative effect of The Modern Corporation and Private Property (MCPP). Yet this approach is insufficient to explain large parts of Berle’s professional career, including what Berle did during the twelve years of the Roosevelt Administration that immediately followed MCPP. This Article offers an alternative focus that better accounts for the career ...

Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton

Seattle University Law Review

A collection of eighteen speeches and lectures, from 2003 to 2018, discussing and expanding on the writings and theories of Adolf Berle and Gardiner Means.

A Conspiracy Of Life: A Posthumanist Critique Of Appoaches To Animal Rights In The Law, Barnaby E. Mclaughlin

University of Massachusetts Law Review

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that,

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely ...

"Black Lives Matter" As A Claim Of Fundamental Law, David B. Mcnamee

University of Massachusetts Law Review

In this Article, I argue that we should understand #BlackLivesMatter as a claim on the Constitution—a very special kind of constitutional claim, on the Constitution as fundamental law. It is a paradigmatic contemporary example of this category of constitutional law for citizens, one that reaches back past the roots of the American Revolution and underlies the logic of popular sovereignty at the core of our system. Section I develops a conceptual sketch of fundamental law and its features. Section II then turns to the content of “Black Lives Matter” as a constitutional principle and traces its position in the ...

Putting Ethnography On The Witness Stand: Review Of Interrogating Ethnography: Why Evidence Matters, Janet K. Keeler

The Qualitative Report

Lawyer, historian and author Steven Lubet’s Interrogating Ethnography: Why Evidence Matters puts several well-known urban ethnographies on the figurative witness stand and finds that some don’t hold up to legal (and journalistic) scrutiny. The author encourages social science researchers to employ fact-checking techniques to increase the veracity of their work. While Lubet praises social science researchers for their altruistic missions and painstaking data collection in the field he finds follow-up research often lacking. He recognizes that ethnographers do not want to be the adversaries of marginalized subjects but believes that more rigorous vetting of data is crucial to ...

Janet Halley And The Art Of Status Quo Maintenance, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Over the past few years, Janet Halley emerged as one of the most avid critics of campus rape feminist activists, activists who push for the reformulation of university investigative rules to shift the burden of proof from the accuser to the accused. Halley contends that Title IX policies, embedded with affirmative consent, are not only procedurally unsound, but bad for boys, bad for sex, and bad for feminism, charging its agenda with “radical feminism” influences. Halley’s stance on campus rape is consistent with her long-held “queer theory” and its anti-feminist deregulatory drive. In this article, I argue that Halley ...

The Influence Of Law-And-Economics On The Ideological Center Of Civil Society – The New American Formalism With A European Counterpoint, Sebastia Ciobotaru

Washington University Global Studies Law Review

Law-and-economics has been the dominant methodology in United States’ adjudication and law commentary for nearly 35 years. Because of its efficiency-only approach, law-and-economics has transformed the law itself from the impartial anchor of our social system into a political tool that legitimizes a new “false center.” Consequently, by failing in its role as a neutral force immune to political bias, the practice of law as advocated by law-and-economics constantly aids the neoliberal counter-revolution to commodify most aspects of our lives and foster a generation of corporate consumers bereft of traditional notions of liberty and autonomy. The main drive behind this ...

Brackeen V. Zinke, Bradley E. Tinker

Public Land & Resources Law Review

In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians ...

Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson

St. Mary's Journal on Legal Malpractice & Ethics

Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities ...

Long-Term Preservation Of Public Art: From Cultural Heritage To The Confederacy, Maliha Ikram

Northwestern Journal of Law & Social Policy

No abstract provided.

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit ...

The Accidental Crit Iii: The Unbearable Lightness Of Being ... Pedro?, Pedro A. Malavet

Pedro A. Malavet

Fall 2018 Newsletter: The Docket, Emma M. Wood

Law Library Newsletter

Copy of the Fall 2018 issue of the UMass Law Library Newsletter, The Docket.

Book Review: Prosecuting Corporations For Genocide, Sarah Federman

Genocide Studies and Prevention: An International Journal

No abstract provided.

Sharia Law And Digital Forensics In Saudi Arabia, Fahad Alanazi, Andrew Jones, Catherine Menon

Journal of Digital Forensics, Security and Law

These days, digital crime is one of the main challenges for law enforcement and the judicial system. Many of the laws which are used to protect the users of current technologies were derived from legislation and laws that are utilized in the control of crimes that are based in the physical realm. This applies not only in Western countries, but in countries that adopt Sharia law. There is a need to establish specific legislation and accepted best practice to deal with digital crimes that is compatible with Sharia law, which affects more than one billion Muslims. This paper presents a ...

California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers

Public Land & Resources Law Review

In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.

The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright

St. Mary's Law Journal

The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge.

Although justice and ...

Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe

Law Faculty Scholarship

[exerpt] "Examine a timelier topic: the court's decision to effectively punt on the major religious freedom and partisan gerrymandering cases it was poised to decide this term. For the court's restrain in these cases may have some relation to our turbulent political times."

The Unequal Battlefield: How The Transgender Ban Would Affect One-Percent Of The Armed Forces, Jennifer M. Garcia

DePaul Journal of Women, Gender and the Law

No abstract provided.

One Text, Another Rendering Now: In The Wake Of Hively V. Ivy Tech Cmty. Coll. Of Ind., The Continuing Struggle To Define Sex Discrimination Under Title Vii, Kaitlyn Krall

DePaul Journal of Women, Gender and the Law

No abstract provided.

The Impact Of Domestic Violence On Immigrant Women, Shawna C. Quast

DePaul Journal of Women, Gender and the Law

No abstract provided.

De-Segregating Attire: How Appearance Has Guided History, Greeny V. Valbuena

DePaul Journal of Women, Gender and the Law

No abstract provided.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area ...

Manifest Disregard In International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, Or Ugly, Chad R. Yates

University of Massachusetts Law Review

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in ...

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.