Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing, Josephine Sandler Nelson
The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most ...
Taming The "Feral Beast": Cautionary Lessons From British Press Reform, 2014 University of Miami
Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi
Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20th Century regulation ...
Property, Exclusivity, And Jurisdiction, 2014 College of William & Mary Law School
Property, Exclusivity, And Jurisdiction, James Y. Stern
No abstract provided.
Choice Of Law, Forum Non Conveniens And Immovables: Recent Perspectives In Canada, Aliamisse O. Mundulai Mr.
ALIAMISSE O. MUNDULAI Mr.
CHOICE OF LAW, FORUM NON CONVENIENS AND IMMOVABLES: RECENT PERSPECTIVES IN CANADA
The traditional choice of law rule in relation to proprietary or possessory interests in real property or immovable is the law of the lex situs. The courts in common law jurisdictions have historically adopted the view that matters concerning the determination of property interests, freehold or leaseholds, will be governed by the law of the place where the property is located.
The lex situs principle which evolved from the House of Lords decision of British South Africa Company v. Companhia de Moçambique has been the guiding principle for ...
Navigating The Turbulence: The First Circuit Clarifies The Preemptive Scope Of The Airline Deregulation Act In Brown V. Unived Airlines, Michael Welsh
Boston College Law Review
On July 9, 2013, in Brown v. United Airlines, Inc., the U.S. Court of Appeals for the First Circuit held that the Airline Deregulation Act (“ADA”) preempted skycaps’ common law tortious interference and unjust enrichment claims. In so holding, the First Circuit articulated a two-pronged test in an attempt to provide clarity to the relationship between the savings clause and the preemption clause of the ADA. This Comment argues that the First Circuit’s two-pronged test is faithful to U.S. Supreme Court jurisprudence and should serve as a model for other federal appeals courts until the Supreme Court ...
The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran
Boston College Law Review
On April 30, 2013, the U.S. Court of Appeals for the Ninth Circuit in In re Fitness Holdings International, Inc. held that bankruptcy courts have the authority to recharacterize debt as equity when the obligation does not constitute a “right to payment” under state law. In so holding, the court adhered to a state law approach and declined to adopt a federal rule for debt recharacterization, thus creating a split amongst the federal appeals courts. This Comment argues that the Ninth Circuit’s state law approach is more desirable than promulgating a federal debt recharacterization rule because state law ...
Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, 2014 Notre Dame Law School
Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen
Notre Dame Law Review
This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence.
2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its ...
A Tale Of Two Codes: The Influence Of Albuquerque And Washington On Green Building, 2014 Boston College Law School
A Tale Of Two Codes: The Influence Of Albuquerque And Washington On Green Building, Jeffrey Pike
Boston College Environmental Affairs Law Review
Green building has become an increasingly important piece of the American economy. Two cases from the past five years addressed this burgeoning field: Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque and Building Industry Association of Washington v. Washington State Building Code Council. As a result of these decisions, legislators would be wise to explicitly evidence their desires when updating or enacting local buildings codes to guard against the potential for severability in the event that the federal Energy Policy and Conservation Act preempts part of the code. So long as they do so, legislators should be able ...
The Recognition Of Indigenous Peoples’ Land: Application Of The Customary Land Rights Model On The Bedouin Case, Morad Elsana
This paper introduces new possibilities for the recognition of Bedouin land in Israel. It shows that the application of the prevalent methods of indigenous land recognition is possible in the Bedouin case, and it would bring legal recognition of Bedouin land rights.
The paper first presents the recognition of indigenous peoples land right in Canada, Australia, and other countries, while concentrating on the native title doctrine and the adoption of indigenous customary law. It shows how many colonial legal systems eventually discovered that their judicial systems included principles that recognize indigenous customary land rights. The application of such principles ...
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.”
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device . . . . In no ...
"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", K Benson
Anwar al-Awlaki was the first American citizen to be targeted for extrajudicial assassination by the Obama administration. While scholarly attention has focused on legality of his killing under domestic law, his status as a chaplain under International Humanitarian Law (IHL) has gone unexamined. The possibility that Anwar al-Awlaki may have been a protected person as a chaplain has profound ramifications for the legality of his killing and for the conduct of the war on terror more generally. As the definition of a "Chaplain" under IHL is under-developed at best and vague at worst, ideologues such as Mr. al-Awlaki operate in ...
Enforcement In A Regime Complex, 2014 SelectedWorks
Enforcement In A Regime Complex, Sergio Puig
Today’s international business environment is fundamentally different than that of fifty years ago. Traditional trade meant selling into one nation goods that were made in another; now trade is mostly about making things in multiple countries and selling them everywhere. Yet the two main branches of public international law that address international business—international trade law and international investment law—have their providence and continue to be viewed as two discrete, separate systems. Through case studies, this Article explores how trade and investment are converging, and the resulting difficulties governments and private interests face when international rules are enforced ...
How Congress Should Fix Personal Jurisdiction, 2014 Duke Law
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties ...
Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin
Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private ...
Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels
Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.
The Problem Of Language And Its Legal Effects®, 2014 SelectedWorks
The Problem Of Language And Its Legal Effects®, Daniel Fernando Gomez Tamayo
Daniel Fernando Gomez Tamayo
In this study the social effects of solitary confinement of foreign law with legal sources, and its close relationship with the handling regulations and legal transplants is discussed. The U.S. Patriot Act of 2001 was approved by the U.S. government to fight crime. So if some public officials have control of ICT, why the ruling government, downloading files or manipulate databases private sector without authorization, or people who are civilians?
Boilerplate Shock, 2014 SelectedWorks
Boilerplate Shock, Gregory Shill
No nation was spared in the recent global downturn, but several countries in the Eurozone arguably took the hardest punch, and they are still down. Doubts about the solvency of Greece, Spain, and a number of their neighbors are increasing the likelihood of a breakup of the common European currency. Observers believe a single departure and sovereign debt default might set off a “bank run” on the euro, with devastating regional and global consequences.
What mechanisms are available to address—or ideally, to prevent—such a disaster?
One unlikely candidate is boilerplate language in the contracts that govern Eurozone sovereign ...
Deja Vu All Over Again? The Internal Affairs Rule And Entity Law Convergence Patterns In Europe And The United States, Matthew G. Dore
Matthew G Dore
Many scholars embrace the view that corporate law convergence is an inevitable byproduct of the internal affairs rule and market competition by jurisdictions that seek to attract new entity formations by offering ever more efficient business association laws. Yet recent developments in Europe and the U.S. cast doubt on this proposition.
As the article describes, the European Court of Justice embraced the internal affairs rule more than a decade ago, and European Union legislation now offers new opportunities for EU Member States to compete in the company law field. But Europe has experienced neither U.S.-style jurisdictional competition ...
Forum Shopping And Post-Award Judgments, 2013 NELLCO
Forum Shopping And Post-Award Judgments, Linda J. Silberman, Maxi Scherer
New York University Public Law and Legal Theory Working Papers
Forum shopping has become increasingly common in the context of post-award judgments. Post-award judgments can take several forms, depending on whether the award is set aside, confirmed, recognized or enforced. Creative parties may forum shop for a set-aside, confirmation, recognition or enforcement judgment and seek to rely on its effects in subsequent proceedings relating to the same award in another country. The courts in that other country will have to assess the effects they give to the foreign post-award judgment, including under existing doctrines of res judicata, issue/claim estoppel. The paper examines how courts should respond to such forum ...
Global Patents: Limits Of Transnational Enforcement, 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law
Global Patents: Limits Of Transnational Enforcement, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the University of Macerata on November 6, 2013. The presentation discussed the increase in transnational patent litigation and what governments must do to protect patent owners in a globalized economy.