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Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. McCall 2015 University of Oklahoma College of Law

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial ...


Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel 2015 Duke Law

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally ...


Silent Similarity, Jessica Litman 2015 SelectedWorks

Silent Similarity, Jessica Litman

Jessica Litman

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form -- silent movies -- had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. In particular, the ...


Restoring Constitutional Equilibrium, Adam Lamparello 2014 SelectedWorks

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words ...


Toward A United Ireland? The Northern Ireland Peace Process And The Devolution Of Powers From London To Belfast, Matthew G. Rooks 2014 University of Georgia School of Law

Toward A United Ireland? The Northern Ireland Peace Process And The Devolution Of Powers From London To Belfast, Matthew G. Rooks

Georgia Journal of International & Comparative Law

No abstract provided.


Twenty-One Theses On The Legal Legacy Of The French Revolution In Latin America, Dante Figueroa 2014 University of Georgia School of Law

Twenty-One Theses On The Legal Legacy Of The French Revolution In Latin America, Dante Figueroa

Georgia Journal of International & Comparative Law

No abstract provided.


The Improbability Of Positivism, Andrew Tutt 2014 Pace University

The Improbability Of Positivism, Andrew Tutt

Pace Law Review

Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”

This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin ...


Human Rights Violations By Canadian Companies Abroad: Choc V Hudbay Minerals Inc, Susana C. Mijares Peña 2014 Western University

Human Rights Violations By Canadian Companies Abroad: Choc V Hudbay Minerals Inc, Susana C. Mijares Peña

Western Journal of Legal Studies

Canadian mining corporations operating abroad represent a challenge to the international legal system and Canadian legal system in the field of human rights. Currently, there are no legal mechanisms available to ensure that these corporations abide by international standards and voluntary codes. For this reason, some argue that Canadian courts should be more active in holding Canadian companies accountable for the human rights violations of their affiliates operating abroad. The recent Ontario Superior Court of Justice decision of Choc v Hudbay Minerals suggests that for the first time, a Canadian court is ready to play a regulatory role in preventing ...


Book Review: Defending Battered Women On Trial, Rebecca M. Bromwich 2014 Western University

Book Review: Defending Battered Women On Trial, Rebecca M. Bromwich

Western Journal of Legal Studies

This is a book review of: Elizabeth A Sheehy, Defending Battered Women: Lessons from the Transcripts (Vancouver: UBC Press, 2014).


Federal Jurisdiction Over U.S. Citizens' Claims For Violations Of The Law Of Nations In Light Of Sosa, Gwynne Skinner 2014 University of Georgia School of Law

Federal Jurisdiction Over U.S. Citizens' Claims For Violations Of The Law Of Nations In Light Of Sosa, Gwynne Skinner

Georgia Journal of International & Comparative Law

No abstract provided.


Lawyers And Jurists, O.F. Robinson 2014 University of Georgia School of Law

Lawyers And Jurists, O.F. Robinson

Georgia Journal of International & Comparative Law

No abstract provided.


Watson, Walton, And The History Of Legal Transplants, John W. Cairns 2014 University of Georgia School of Law

Watson, Walton, And The History Of Legal Transplants, John W. Cairns

Georgia Journal of International & Comparative Law

No abstract provided.


From Chrysler And General Motors To Detroit, David A. Skeel Jr. 2014 University of Pennsylvania Law School

From Chrysler And General Motors To Detroit, David A. Skeel Jr.

Faculty Scholarship

In the past five years, three of the most remarkable bankruptcy cases in American history have come out of Detroit: the bankruptcies of Chrysler and General Motors in 2009, and of Detroit itself in 2012. The principal objective of this Article is simply to show that the Grand Bargain at the heart of the Detroit bankruptcy is the direct offspring of the bankruptcy sale transactions that were used to restructure Chrysler and GM. The proponents of Detroit’s “Grand Bargain” never would have dreamed up the transaction were it not for the federal government-engineered carmaker bankruptcies. The Article’s second ...


Inventing The Classical Constitution, Herbert Hovenkamp 2014 University of Iowa

Inventing The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any ...


Sherlock’S Admonition: Vindicatory Contempts As Criminal Actions For Purposes Of 11 U.S.C. § 362(B)(1), Amir Shachmurove 2014 SelectedWorks

Sherlock’S Admonition: Vindicatory Contempts As Criminal Actions For Purposes Of 11 U.S.C. § 362(B)(1), Amir Shachmurove

Amir Shachmurove

No abstract provided.


Economics Of Legal History, Daniel M. Klerman 2014 BLR

Economics Of Legal History, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

2) Law as an independent variable. Studies ...


Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe 2014 SelectedWorks

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community ...


Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp. Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson 2014 SelectedWorks

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp. Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages.

Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular ...


The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen 2014 SelectedWorks

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.


Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark 2014 Georgetown University Law Center

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 ...


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