Digital Commons Network^™

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions And Treble Damages, Alex B. Long

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Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute …

Antitrust 2025, Maurice Stucke

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Antitrust policy in the United States has roughly twenty to thirty year cycles. So if past cycles are reliable indicators of future ones, we are at (or approaching) a new antitrust policy cycle, with 2025 being the approximate midpoint.

Any new policy cycle will be defined by three fundamental questions: a. What is competition? b. What are the goals of competition law? c. What should be the legal standards to promote these goals?

Rather than predict the state of antitrust policy in 2025 (such as more or less cartel enforcement), this Essay maps two scenarios based on these three fundamental …

Vacating Chrysler, George Kuney

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This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …

Something Judicious This Way Comes... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael J. Higdon

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With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

When The Case Gives You Lemons ... Using Negative Authority In Persuasive Legal Writing, Michael J. Higdon

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No abstract provided.

Money, Is That What I Want?: Competition Policy & The Role Of Behavioral Economics, Maurice Stucke

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Although the behavioral economics and happiness economic literature are hot areas in legal and economic scholarship, the U.S. policymakers, until recently, have not embraced the literature. That is changing with the financial crisis. Policymakers are re-examining the assumptions underlying many neoclassical economic theories embedded in their policies.

This article addresses one cornerstone of neoclassical economic theory, namely that rational consumers pursue their economic self-interests. It is commonly associated with Adam Smith’s famous statement: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own …

An Exclusionary Rule For Police Lies, Melanie Wilson

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Although the Supreme Court has often said that truth is an imperative to justice, we now know that police officers, the key investigative component in our criminal justice system, lie. How often do the police lie? No one knows for sure. But credible reports of police lies are common.

Because our legal system treats the police as if they were impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality, the criminal justice system lacks the appropriate structure to expose and effectively deal with …

Commercial Leasing In China: An Overview, Gregory M. Stein

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In an effort to understand how and why investors and other professionals are willing to participate in China’s unsettled commercial leasing market, I recently interviewed Chinese and Western experts in the real estate field, including lawyers, judges, developers, bankers, government officials, and academics. This Article summarizes my findings about China’s commercial leasing market. China’s new property law provides some insight into how China’s real estate market functions, but a full picture requires an understanding of how these professionals have operated in a legally uncertain environment, both before and after the new law became effective.

Governance, Accountability And The New Poverty Agenda, Wendy A. Bach

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Across the country a new poverty agenda is emerging. These efforts are limited by the political consensus that has emerged since welfare reform and focus, as has always been the case, on the “deserving” - in today’s iteration, primarily the working poor. Mirroring national and international trends, the means of governance of these new social welfare programs has also begun to change. Where once there was a set of programs ostensibly controlled through law and regulations, in growing pockets there is now radical devolution and abandonment of traditional legal and rule making structures. Experiments in policy, program structure, and governance …

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

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This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …

Through A Glass Darkly: Using Brain Science And Visual Rhetoric To Gain A Professional Perspective On Visual Advocacy, Lucille Jewel

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American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel.

Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need …

Book Review - Richard Hyland's Gifts: A Study In Comparative Law, Iris Goodwin

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This essay is a lengthy review of Richard Hyland's Gifts: A Study in Comparative Law (OUP, 2009), a masterpiece of comparative law scholarship.

How The Rich Stay Rich: Using A Family Trust Company To Secure A Family Fortune, Iris Goodwin

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This Article is about family trust companies and the role they play in preserving great fortunes. A family trust company is a corporation formed to provide fiduciary services to a related group of people, in contrast to banking institutions established to offer similar services to a larger public. The province of the mega-rich (who remain very much upon the American landscape, the recent economic crisis notwithstanding), these entities have received scant attention from the academic bar. While family trust companies are not new, recent changes in the law in some states have made these entities far easier to create and …

Lessons From The Financial Crisis, Maurice Stucke

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What lessons can we learn from the financial crisis concerning the issues of systemic risk, firms too big to fail, and the income inequality in the United States today?

In light of the public anger over the financial crisis and bailouts to firms deemed too big to fail, this Essay first addresses the issue of systemic risk posed by mergers generally and those in the financial services industries specifically. The federal government heard concerns in the 1990s about mega-mergers in the financial industry. The Department of Justice, for example, heard concerns that the Citibank-Travelers merger would create an institution too …

When A Monopolist Deceives, Maurice Stucke

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This essay uses one context - a monopolist’s deceptive advertising or product disparagement - to illustrate how competition authorities and courts should evaluate a monopolist’s deception under the federal antitrust laws. Competition authorities should target a monopolist’s anticompetitive deception, which courts should treat as a prima facie violation of the Sherman Act without requiring a full-blown rule of reason analysis or an arbitrary, multi-factor standard.