Digital Commons Network^™

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Proximate Cause Explained: An Essay In Experimental Jurisprudence, Joshua Knobe, Scott J. Shapiro

University of Chicago Law Review

One of the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called “responsible cause.”

Recent work in …

The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Ronnell Andersen Jones, Sonja R. West

North Carolina Law Review

No abstract provided.

Natural Punishment, Raff Donelson

North Carolina Law Review

No abstract provided.

The Duty Of Legislative Counsel As Guardians Of The Statute Book: Sui Generis Or A Professional Duty Of Lawyers?, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Legislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are …

Judicialization Of Election Disputes In Africa's International Courts, James Thuo Gathii, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

This article assesses what benefit losers of high-stakes national elections think they will get from petitioning international courts in Africa. We seek to establish how judicial intervention differs before an election when there is a risk of an international law violation, versus after an election has occurred and the result is viewed as flawed. We address these questions by drawing on a set of disputes decided by international courts in Africa in the African Court, the Economic Community of West African States (“ECOWAS”) Community Court of Justice, and the East African Court of Justice. We supplement our analysis by discussing …

Hunting For Nondelegation Doctrine's Snark, Roderick M. Hills

Vanderbilt Law Review En Banc

No abstract provided.

Investigating The Contract Production Process, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Contract law and theory have traditionally paid little attention to the processes by which contracts are made. Instead, contracts among sophisticated parties are assumed to be full articulations of the desires of the parties; whatever the process, the outcome is the same. This article compares sovereign debt contracts from US and UK firms, with different production processes, that are trying to do the same thing under very similar legal regimes. We find that that the production process likely matters quite a bit to the final form that contracts take.

Show Your Religion, Claim Your Citizenship: The Citizenship Amendment Act, 2019, Ishita Chakrabarty

Emory International Law Review Recent Developments

No abstract provided.

The African Human Rights System As ‘Norm Leader’: Three Case Studies, Obiora C. Okafor, Godwin E.K. Dzah

Articles & Book Chapters

Africa (including its human rights system) is rarely imagined or considered an originator, agent and purveyor of ideas, including in the human rights sphere. On this occasion of the fortieth anniversary of the adoption of the 1981 African Charter on Human and Peoples’ Rights which founded the African human rights system, it is only fitting that its contributions or otherwise to global human rights praxis, over these four decades, be examined from this perspective. Utilising the theory of the norm life cycle, developed by scholars of international relations who work within ‘strategic social constructivism’, this article examines how the African …

Exploring Sectoral Solutions For Digital Workers: The Status Of The Artist Act Approach, Sara Slinn

Articles & Book Chapters

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulating digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. First, the necessity for applicant unions to demonstrate a threshold level of support among workers requires applicants to accurately estimate the number of workers in the proposed …

Introduction To The Edward Elgar Research Handbook On Law And Emotion, Susan A. Bandes, Jody Lynee Madeira, Kathryn D. Temple, Emily Kidd White

Articles & Book Chapters

The role of emotion in law has long been shrouded in mystery. The legal system is built on assumptions about human behavior, including assumptions about emotion. Thus, unavoidably, understanding emotion is an essential part of building a fairer, more effective system. Yet the emergence and growth of Law and Emotion as a field of study has been slowed by the belief that merely by acknowledging emotion, scholars and jurists would undermine the rule of law. It has been further hampered by the suspicion that emotions are too ephemeral or subjective to be understood in any systematic way. For too long, …

The E-Banknote As A 'Banknote' : A Monetary Law Interpreted, Benjamin Geva, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht

Articles & Book Chapters

The article discusses whether an electronic banknote is a ‘banknote’. The issue is dealt with as a matter of general statutory interpretation in the context of evolving technologies and institutional arrangements. The article proposes a clear terminology to address concepts underlying digital currencies and access to central bank money and argues that a banknote may be ‘written’ electronically. The article is critical of both account-based Central Bank Digital Currency (CBDC) and cryptocurrencies and highlights features of nonblockchain token-based alternatives. It sheds light on considerations affecting the selection of a design which is appropriate from both a functional and legal perspective …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

Substantial Similarity Substantial Similarity’S Silent Death, Daryl Lim

Faculty Scholarly Works

Copyright litigation involving hit songs like Robin Thicke’s “Blurred Lines,” Justin Bieber and Usher’s “Somebody to Love,” and Led Zeppelin’s “Stairway to Heaven” caused many in the music industry to vex over the line between homage and infringement. When are the two works too similar? To many courts and scholars, substantial similarity is “bizarre,” “ad hoc,” and “a virtual black hole in copyright jurisprudence.” Every creative work borrows some inspiration from other works, whether copyrighted or not. Judging when defendants appropriated too much is an inherently opaque and subjective enterprise, but unraveling its mysteries is critical for the flourishing of …

A New Approach To Executory Contracts, John A.E. Pottow

Book Chapters

Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under section 365 of the Bankruptcy Code. The case law is "hopelessly convoluted" and a "bramble-filled thicket." While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law and commentary, all would agree Jay Westbrook has been at the modern vanguard of this Sisyphean task. (1 assign Westbrook to the "modern" forefront, thereby relegating Vern Countryman, whose legacy in this domain rightly persists, to the annals of history, choosing as my perhaps arbitrary dividing line the adoption …

Faith In Strasbourg And Luxembourg? The Fresh Rise Of Religious Freedom Litigation In The Pan-European Courts, John Witte Jr., Andrea Pin

Emory Law Journal

The religious landscape of Europe has changed dramatically in the past two generations. Traditional Christian establishments have been challenged by the growth of religious pluralism and strong new movements of laïcité and secularism. Once powerful religious cultures have been shattered by exposures of clerical abuses and financial self-dealing, leading to emptier pews and waning political influence. Once quiet, homogenous European communities are now home to large groups of new Muslim emigrants, making new demands and sparking strong anti-immigrant movements. Once strictly controlled national borders have opened across Eastern and Western Europe, leading to massive migration and tense local intermixtures of …

Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land

Faculty Articles and Papers

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. …

Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray

Law Faculty Scholarly Articles

This article performs an analysis of one mode of visual legal communication:

diagrammatics and the visualization of legal data and other information

in legal instruments and communications.

The Proactive Law movement and the Legal Design movement each

seek to transform legal instruments and documents to improve access to and

comprehension of the communication of law to all persons. “All persons”

includes both law-trained and non-law-trained persons and extends from the

literate and educated all the way to disadvantaged, illiterate, and less-thanfully

literate persons. The overall goal of the Proactive Law movement and a

primary goal of Legal Design is to …

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

Law Faculty Scholarly Articles

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand.

There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

In November 2019, an Oklahoma trial court judge, sitting without a jury, ruled that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals were guilty of creating a public nuisance because their production and marketing of prescription opioid painkillers significantly contributed to the current opioid epidemic in the State of Oklahoma. The judge also held that Johnson & Johnson must contribute $65 million to pay for the State's program to abate this nuisance. Although the case has been appealed, it is significant because it was the first government sponsored opioid case to actually go to trial. Although there are many issues …

Still Strangers In The Land: Achievement Barriers, Burdens, And Bridges Facing African American Students Within Predominantly White Law Schools, Cristal E. Jones

Minnesota Journal of Law & Inequality

No abstract provided.

Judicialization Of Election Disputes In Africa’S International Courts, James T. Gathii

Faculty Publications & Other Works

When elections are judicialized in Africa, national courts overwhelmingly legitimize incumbent electoral victories. When opposition candidates lose in high stakes presidential and gubernatorial elections, they seldom concede defeat with- out legal challenges. Claims of electoral irregularities, fraud, incompetence of electoral bodies, violence, and an unequal playing field, among other factors, transform these cases into highly contested mega-political disputes when they are judicialized.

Rather than creating new political equilibria, judicialization in national courts often results in the hegemonic preservation of incumbents. Though opposition politicians and political parties know this, they nonetheless resort to international courts in Africa, in part, because they …

The Uncertain Fate Of Asymmetrical Dispute Resolution Clauses In Arbitration Around The Globe: To Be Or Not To Be, Raluca Papadima

Scholarly Works

This article examines the validity and enforceability of asymmetrical dispute resolution clauses combining arbitration and litigation. Such clauses are currently favored by businesses in their search for a method of dispute resolution that provides a more favorable position for one of the parties to an agreement and ensures better enforcement against the assets of the counterparty.

Minnesota's System Of Justice By Geography In Child Protection Proceedings: Base Issues In Minnesota's Parental Representation Scheme And In The Discretionary Appointment Of Counsel Under Section 260c.163., Samantha Zuehlke

Mitchell Hamline Law Review

No abstract provided.

Criminal Law: Incompatible Approaches To Interpreters’ Translations: Protecting Defendants’ Right To Confront — State V. Lopez-Ramos, 929 N.W.2d 414 (Minn. 2019)., Alicia Neumann

Mitchell Hamline Law Review

No abstract provided.

The Forensic Interviewer At Trial: Guidelines For The Admission And Scope Of Expert Testimony Concerning A Forensic Interview In A Case Of Child Abuse (Revised And Expanded), Victor I. Vieth

Mitchell Hamline Law Review

No abstract provided.

Reassessing The Judicial Empathy Debate: How Empathy Can Distort And Improve Criminal Sentencing, Warren Cormack

Mitchell Hamline Law Review

No abstract provided.