Law Commons^™

Towards A Nexus Of Virtue, Ronald J. Colombo

Ronald J Colombo

Corporate law, like all law, should be directed toward the common good. The common good requires that corporate activity be restrained, if not actively directed, by human virtue. An analysis of the corporate enterprise suggests that those corporate actors with the greatest stake in the exercise of virtue, and best positioned to influence corporate activity via the exercise of virtuous judgment, are the corporation’s officers. Thus, one of the primary objectives of corporate law should be the promotion of virtue among corporate officers.

Contrary to what some might assume, the promotion of virtue among corporate officers need not entail a …

Reforming Paradoxes Of Socio-Economic Development: Modeling Change And Continuity At The World Bank, Peter Hammer

Peter Hammer

In 1995, James Wolfensohn became President of the World Bank. He inherited an institution at a time of crisis and drift. The crises were triggered by the sustained backlash against the so-called “Washington Consensus,” a strong wave of anti-globalization sentiment and a shocking lack of evidence that Bank policies have had any real impact in generating growth or reducing poverty. His two-term presidency (1995-2005) oversaw the creation of an ambitious agenda for socio-economic development. The truth is, however, that this is not the first time the Bank has undergone radical policy shifts. In the past, the Bank has cycled through …

The Ballot As A Bulwark: The Impact Of Felony Disenfranchisement On Recidivism, Guy P. Hamilton-Smith, Matt Vogel

Guy P Hamilton-Smith

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article …

Expanding Pro Bono's Role In Legal Education, Margaret M. Cordray

Margaret M Cordray

As an increasing number of Americans are unable to afford an attorney to help with urgent legal problems, they are left to navigate a complex legal system on their own. In the effort to motivate more attorneys to provide desperately needed pro bono services, law schools must play a greater role in introducing students to the value and importance of pro bono work. This article contends that by implementing a program which offers students meaningful pro bono work that is both educational and easily accessible, law schools can involve more students in pro bono activities. The article also offers an …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah L. Gerwig-Moore

Sarah L Gerwig-Moore

The accompanying article explores the evolution of religious free exercise claims as considered under the First Amendment, Religious Freedom Restoration Act (RFRA) and now the Religious Land Use and Institutionalized Persons Act (RLUIPA). My Master of Theological Studies thesis explored questions of free exercise among death row inmates at San Quentin Prison in California. Now, nearly ten years later, I explore whether RLUIPA has made the kind of inroads we expected and hoped for.

Unfortunately—due in major part to federal legislation (PLRA) curtailing civil lawsuits by prisoners—RLUIPA’s impact has been limited at best. Examining court decisions from across the states …

Property On The Borderline: A Comparative Analysis Of The Legal Status Of Animals In Canada And The United States, Maneesha D. Deckha

Maneesha D Deckha

This Article reviews recent animal-related law reform in the United States in the areas of criminal, tort, family, and estate laws, and juxtaposes these developments with the current state of similar areas of law in Canada. While neither country may be described as “animal-friendly,” the article suggests that the United States is far more willing to challenge the traditional classification of animals as property at least where companion animals are concerned. Canada, in contrast, has remained essentially conservative, failing to engage with the posthumanist questions revisiting animals’ legal status as property that have begun to emerge in American jurisprudence. The …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature …

Where Did Mill Go Wrong?: Why The Capital Managed Firm Rather Than The Labor Managed Enterprise Is The Predominant Organizational Form In Market Economies, Justin Schwartz

Justin Schwartz

In this Article, I propose a novel law and economics explanation of a deeply puzzling aspect of business organization in market economies. Why are virtually all firms are organized as capital managed and owned (capitalist) enterprises rather than as labor managed and owned cooperatives? Over 150 years ago, J.S. Mill predicted that efficiency and other advantages would eventually make worker cooperatives predominant over capitalist firms. Mill was right about the advantages but wrong about the results. The standard explanation is that capitalist enterprise is more efficient. Empirical research, however, overwhelmingly contradicts this. But employees almost never even attempt to organize …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

"Cost Savings" As Proceeds Of Crime: A Comparative Study Of The United States And The United Kingdom, Richard C. Alexander

Richard C Alexander

The article begins by comparing and contrasting the provisions relating both to asset forfeiture and money laundering under U.S. Federal law and the law of the United Kingdom (in this area, the differences between the provisions of the three jurisdictions making up the United Kingdom are not significant). Some reference is also made to Florida state law, but principally by way of example rather than analysis. It then analyzes the U.S. case law relating to costs saved through the commission of a criminal offense and considers the possible effect of the amendment, made in 2009, to 18 U.S.C. §1956, before …

Psychopathy As Sword Or Shield? A Legislative Proposal For The Greater Good, Vanessa Catherine Whirl

Vanessa Catherine Whirl

While mental health law has developed over the recent years as the fields of psychology and law combine their research, a gap is still left for one of the world’s most threatening mental health patients, psychopaths. Current legal definitions of “mental illness” exclude this diagnosis from legislation aimed at special attention and treatment of mental health patients. This issue is addressed in this article by legislative history, discussion of needed for changes in the laws regarding psychopathy, and analysis of the Hare Psychopathy Checklist. Finally, a proposal for legislation is made altering the prongs of current civil commitment statutes in …

Let Charities Speak: 501(C)(3) Charitable Organizations After Citizens United, Paul D. Weitzel

Paul D. Weitzel

This paper argues that tax deductible charities have a constitutional right to speak about politics. 501(c)(3) organizations include all tax deductible charities, including religious groups. Citizens United v. Federal Election Commission abrogated the ban on political speech by 501(c)(3) organizations by rejecting the reasoning in Regan v. Taxation with Representation of Washington. Regan found that 501(c)(3) organizations could be prohibited from speaking because they would still be able to speak through affiliate organizations. Citizens United rejected this argument when applied to for-profit corporations, and that reasoning applies equally to non-profit organizations. Citizens United also rejected the distinction between subsidies and …

Countering Criminalization: Toward A Youth Development Approach To School Searches, Sarah Jane Forman

Sarah Jane Forman

Every since New Jersey v. T.L.O., the dominant narrative, particularly in inner-city schools, has been that school children are dangerous and violent, drug dealing, gang affiliated, and out of control. Under the rubric of school safety, students are stripped of the full protection afforded by the 4th Amendment while being subjected them to a model of school discipline that utilizes law enforcement officers to enforce school rules. Such policies alienate targeted youth from mainstream society, increasing the lure of counter-culture ideas, decreasing the legitimacy of the rule of law, and feeding the school-to prison pipeline. In section one, I examine …

Achieving Diversity In The Parents Involved Era: Evidence For Geographic Integration Plans In Metropolitan School Districts, Julian Vasquez Heilig, Meredith Richard, Kori Stroub, Michael Volonnino

Julian Vasquez Heilig

In the wake of the Parents Involved decision, which rendered unconstitutional voluntary school integration plans using individual student race, districts have adopted a number of alternative integration strategies to combat the re-segregation of America’s schools. One promising approach, developed by Berkeley Unified School District, uses neighborhood demographic and socioeconomic characteristics as proxies for student race and ethnicity in assigning students to schools. This study provides the first empirical assessment of such “geographic integration models” by 1) modeling how accurately neighborhood demographic and socioeconomic characteristics predicted student race/ethnicity, and 2) estimating the potential increases in school diversity under such a plan. …

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Ellen J Crivella

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best …

Dr. King’S Speech: Surveying The Landscape Of Law And Justice In The Speeches, Sermons, And Writings Of Dr. Martin Luther King Junior, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The belief that an essential relationship exists between law and justice has been recognized since the time of the ancient Greeks. In fact, the concept extends well beyond Western philosophy and jurisprudence. Distinct from other aspects of justice, the relationship between law and justice considers the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, he made a meaningful contribution to the intellectual discourse of his time by forcing the discussion on the broader society and centering it …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …

Community Collateral Damage: A Question Of Priorities, Andrea J. Boyack

Andrea J Boyack

Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien.

In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article analyzes the causal connection between religious treatment exemption statutes and child deaths. Further, the Article develops a nexus between partial immunity statutes and wrongful prosecutions of religious parents

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Torture, Customary International Law, Promulgative Articulation, And Jus Cogens: Why And How Some United States Government Conduct Violates International And United States Law, Christopher L. Blakesley

Christopher L. Blakesley

This essay exposes the confusion over the meaning of customary international law and jus cogens that infests the writing of many international jurists, including scholars, and judges, especially those from the Common Law world. The essay shows how the essential idea behind customary international law, especially jus cogens in relation to crime is basic and easy to grasp, although some scholars claim that it is impenetrable. On the edges, of course, there is valuable disputation over nuance and the breath of the concepts. At bottom, however, the essence of the concepts is as basic as the deepest and most dearly …

The Global Shadow Bank--Systemic Risk And Tax Policy Objectives: The Uncertain Case Of Foreign Hedge Fund Lending In The United States, Julie A.D. Manasfi

Julie A.D. Manasfi

ABSTRACT: THE GLOBAL SHADOW BANK-- SYSTEMIC RISK AND TAX POLICY OBJECTIVES: THE UNCERTAIN CASE OF FOREIGN HEDGE FUND LENDING IN THE UNITED STATES With the recent financial crisis in the U.S. starting in 2007, much attention has been drawn to the issue of whether and to what extent financial regulation should keep pace with financial innovation and the shadow banking system. However, often ignored is the Internal Revenue Code’s failure to adequately keep pace with this financial innovation. One example of how the tax laws lag behind financial innovation can be found in the taxation of lending into the U.S. …

Of Woman Born? Technology, Relationship, And The Right To A Human Mother, Jennifer S. Hendricks

Jennifer S. Hendricks

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today. …

Philadelphia Lawyers: Policing The Law In Pennsylvania, Brian K. Pinaire, Milton Heumann, Christian Scarlett

Brian K. Pinaire

Unlike other professions within the Commonwealth, Pennsylvania attorneys “police” themselves, meaning that ethical infractions and ramifications of criminal convictions are addressed not by the government, but rather by disciplinary entities within the profession. Recent socio-legal and social science research has addressed the various statutory “collateral consequences” that attach to criminal convictions, but we know comparatively little about consequential discipline instituted outside the purview of the state. Based on an examination of 419 disciplinary dispositions from 2005-2009, as well as interviews with elites, this study provides the first-ever examination of the process and legal-political implications of peer-policing of the law in …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …