Digital Commons Network^™

By Way Of Conclusion: Making Sense Of Fallacies, Claire Hill

Articles

As noted in the Introduction to this volume, our collective goal is to examine some of the key misconceptions and unquestioned assumptions – which we refer to as ‘fallacies’ – that guide, and often misguide, developments in modern corporate law and financial regulation. These fallacies are embedded and instantiated in scholarship, law, public policy and public opinion. Their intellectual and practical impact is considerable, but it is largely hidden. Critically, these fallacies too often frame legal and policy debates, strongly influencing and even determining policy choices. While our volume does not (and indeed cannot) provide an exhaustive analysis of this …

Tribes And Temperament: Two Underappreciated Determinants Of Market Actor Behavior, Motivations And Beliefs, Claire A. Hill

Articles

This chapter, written for a volume on Hidden Fallacies in Corporate Law and Financial Regulation, argues that markets and market actors can be better understood by taking into account some neglected determinants of behavior, motivations and beliefs -- and ultimately, by embracing an expanded view of rationality.

The neglected determinants are tribes, by which I mean communities with their own norms, rituals, and institutions, and temperament, which I use in its colloquial sense. Deal makers, for instance, can be said to have a community, with norms as to, among other things, ‘what’s market.” Knowing and abiding by the norms conveys …

Review Of A Research Agenda For Patent Law, Jacob Sayward

Articles

No abstract provided.

True Law As Genre: Narrative Nonfiction And The Law, Jorge L. Contreras

Texas A&M Journal of Property Law

The Genome Defense, which offers a book-length narrative nonfiction account of the civil litigation that led to the elimination of patents on human genes in the United States, is a member of a distinct literary subgenre that I term True Law. Like the older and better-known True Crime genre, True Law narratives blend the conventions of journalism and novelistic writing to describe complex legal disputes in a manner that is engaging and accessible to the general public. True Law accounts, which have increased in number and popularity since the publication of Jonathan Harr’s A Civil Action in 1995, serve …

On Snow’S Intellectual Property And Immorality, David O. Taylor

Texas A&M Journal of Property Law

In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. …

What We Can Learn From The Notorious P&Id V. Nigeria, Emily Granja

Arbitration Brief

On October 23, 2023, England’s High Court of Justice ruled in favor of the Federal Republic of Nigeria in Nigeria v. Process & Industrial Developments Ltd. (P&ID). Reviewing the case, the High Court vacated P&ID’s $10 billion arbitral award after finding significant evidence of fraud and bribery. While the High Court’s decision marked a victory for Nigeria, it also shook the international arbitration system. This case exposed some of international arbitration’s flaws and generated new concerns regarding the confidentiality inherent in the arbitration process.

Protecting Older Adults Who Are Incarcerated: Does The 8th Amendment Work?, Jalayne J. Arias

Health Matrix: The Journal of Law-Medicine

Older adults in prison and within other carceral systems (i.e. jails, parole) are uniquely at risk for elder mistreatment. Emerging research has begun to consider the experiences of older adults within carceral settings, including aging in prison, chronic conditions and medical care, compassionate release, and end-of-life care. This research exposes evidence that prisons and other carceral settings lack resources and services for older adults. Given increased vulnerability and a lack of protective resources, older adults experiencing incarceration may experience disproportional rates and consequences of elder mistreatment. A public health approach to develop tools and resources that would prevent, detect, and …

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Health Matrix: The Journal of Law-Medicine

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Planning For Cognitive Decline: Combining Formal Supported Decision-Making Agreements And Healthcare Power Of Attorney, Megan S. Wright

Health Matrix: The Journal of Law-Medicine

Patients who have impaired decision-making abilities may not be permitted to make contemporaneous medical decisions. Instead, a substitute decision maker, including a healthcare agent, may be asked to decide on the patient’s behalf even if the patient wants to participate in the medical decision making. Being marginalized in decisions made about their medical care may lead to a decline in wellbeing for these patients. But supported decision making, wherein a person with cognitive impairments receives decision-making assistance, may facilitate such patients making contemporaneous medical decisions. As supported decision-making legislation spreads throughout the United States, there are questions about how this …

Cultural Conquest: Russia's Strategic Assault On Ukrainian Heritage As Both A Catalyst For And A Casualty Of Conflict, Brittan Harrell

American University International Law Review

Vladimir Putin and his government have disseminated fabricated claims about Ukraine’s history, language, and sovereignty as a rationalization for the 2022 invasion of Ukraine. Not only has the war resulted in grave human loss, but it has also caused widespread destruction throughout Ukraine. Nongovernmental organizations, foreign governments, academics, and Ukrainian citizens have collected robust evidence that Russian forces are purposefully targeting repositories of Ukrainian identity. The intentional destruction of this protected property is considered a war crime under the Rome Statute. Following the International Criminal Court’s (“ICC”) first successful prosecution for the destruction of protected property in 2016, there has …

In Violation Of Diplomatic Treaties: A Look Into Ecuador's Forced Extraction, Josie C. Tarin

American University International Law Review

In December 2023, former Vice-President of Ecuador, Jorge Glas, sought political asylum in the Mexican Embassy located in Quito, Ecuador. On April 5, 2024, following a week of political discourse between the Ecuadorian and Mexican governments, the Mexican government granted Glas political asylum. In their announcement, Mexico reminded Ecuador that the 1954 Caracas Convention on Diplomatic Asylum and the 1961 Vienna Convention on Diplomatic Relations protected both Glas and the employees within the Mexican embassy. On the evening of Mexico’s announcement, Ecuadorian agents operating under executive authority entered the Mexican embassy without consent, injured an employee of the Mexican embassy …

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …

Legal Pluralism In Canada And The Vitality Of Indigenous Law, Kent Mcneil

Conference Papers

State law in Canada consists of the civil law in private law matters in Quebec and the common law in public law matters there and generally in the rest of the country, supplemented by legislation. Legislative authority is divided by the Constitution Act, 1867,1 between the federal government and the ten provinces. In addition, the three territories – Yukon, Northwest Territories, and Nunavut – have legislative authority that has been delegated to them by the Parliament of Canada. This federal division of powers means that there is federal law that is generally uniform throughout Canada (e.g. criminal law) and provincial …

Improper Use Of Tax Treaties And Source Taxation: Policy, Practice And Beyond, Eivind Furuseth, Jinyan Li

Conference Papers

The question of improper use of tax treaties (or treaty shopping) defies a simple or straightforward answer. The line between “proper use” and “improper use” a tax treaty depends on the determination of the intended use of a treaty provision by Contracting States (i.e. the common intention as well as the object and purpose of the treaty provision). As a treaty interpretation issue, that determination varies from country to country. Furthermore, the extent of taxpayers’ right to tax planning and expectation of tax certainty also varies across countries. Finally, the effect of domestic general-anti-avoidance rules (GAARs) and the new principal …

The Duality Of Lawyers As Escrow Agents, Douglas R. Richmond

Loyola University Chicago Law Journal

An escrow agent is someone who holds money or property in trust for others under agreed terms until a transaction is completed, or a dispute is resolved. Although institutional depositaries are widely available, clients frequently ask their lawyers to serve as escrow agents in connection with transactions in which the lawyer represents the client. In fact, lawyers are generally permitted to serve as escrow agents with respect to clients' transactions so long as all parties involved knowingly consent to the arrangement. This is true both under agency law and as a matter of lawyers' professional responsibility.

Unlike a lawyer who …

Dignitatis Humanae, Francis J. Beckwith

Loyola University Chicago Law Journal

Sixty years ago the Second Vatican Council issued the document Dignitatis Humanae, a declaration on religious freedom. At the time it was considered to be the Catholic Church's most significant concession to the modern world, though the Council argued that the declaration was, given the political and religious realities at the time, a legitimate doctrinal development rooted in the Church's most ancient teachings. Its defense of religious liberty relied on widely held and uncontroversial beliefs about human nature, the common good, and the meaning of religion. But since the beginning of the 21st century those beliefs have been challenged …

Table Of Contents, Loyola University Chicago Law Journal

Loyola University Chicago Law Journal

No abstract provided.

The Right To 'Trip:' Navigating Psilocybin-Assisted Psychotherapy Under The Right To Try Pathway, Caitlyn S. Greenspun

Loyola University Chicago Law Journal

This Comment explores the legal, ethical, and regulatory challenges surrounding the use of psilocybin-assisted psychotherapy for terminally ill patients under the federal Right to Try (RTT) Act. While psychedelics like psilocybin are demonstrating extraordinary therapeutic potential, particularly in easing end-of-life psychological distress, patients remain barred from access due to the Controlled Substances Act (CSA) and the Drug Enforcement Administration's (DEA) narrow interpretation of its authority. Through a comprehensive analysis of legislative history, regulatory frameworks, and administrative law principles, this Comment argues that the DEA's position not only misinterprets the statutory relationship between the RTT Act and the CSA, but also …

Applicability Of Multilateral Environmental Agreements During International Armed Conflicts, Beatrice L. Hamilton

Loyola University Chicago Law Journal

Armed conflicts increasingly contribute to environmental damage and climate change, yet, as proven by recent and ongoing conflicts, the legal framework for the protection of the environment under the law of armed conflict (LOAC) fails to effectively mitigate these damages. With rising temperatures, already diminishing resources, the counter-acting of mitigation and adaptation efforts due to warfare and geo-political tensions on the rise, there is a strong case for considering the potential for enhancing the protection of the environment during armed conflicts.

This Article examines the terms of applicability of multilateral environmental agreements (MEAs) during international armed conflicts. The article draws …

Introduction To Issue Three, Carolyn Grammer

Loyola University Chicago Law Journal

No abstract provided.

Introduction To Issue Four, Keshini Mahesan

Loyola University Chicago Law Journal

No abstract provided.

Table Of Contents, Loyola University Chicago Law Journal

Loyola University Chicago Law Journal

No abstract provided.

Temporary/Forever: The Fissured Economy, Obstacles To Employment, And Regulating The Future Of Exploitation In Temp Work, Kevin Herrera

Loyola University Chicago Law Journal

Among workers in United States, contingent and temporary work arrangements have grown to represent a substantial segment of available jobs, with spikes in their predominance corresponding to major economic shake ups like the Great Recession and the COVID-19 pandemic. These arrangements are part of a larger trend of the “fissuring” of United States employment, wherein applicants are hired by one company and then sent to do their job at another, obscuring who actually employs the worker. Jobs through temp staffing agencies are a particularly dominant form of fissuring among low-wage workers and create conditions under which accountability for workplace abuses …

Advanced Magic In Illinois: Amendments To The Illinois Rules Of Professional Conduct And The Confusion Over How To Handle Flat Fees Paid In Advance, Alberto Bernabe

Loyola University Chicago Law Journal

Attorneys face ongoing challenges in structuring legal fees, particularly when deciding between hourly rates, contingency arrangements, and flat fees. This Article examines recent amendments to the Illinois Rules of Professional Conduct regarding flat fees and explores the persistent confusion over how attorneys should handle fees paid in advance. The debate centers on whether advance payments should be deposited in client trust accounts. The Article analyzes alternative regulatory approaches to address this issue, including proposals to eliminate or modify Rule 1.15(c), which currently governs the handling of advance fees. It evaluates the merits of different fee structures and examines whether there …

Racing To The Top Instead Of The Bottom In Illinois Estate Law, Sarah E. Waldeck

Loyola University Chicago Law Journal

In the last two decades, competition for trust business has led states to abolish the Rule Against Perpetuities, authorize trust decanting, and permit self-settled asset protection trusts all in the hope that settlors will bring their trusts (and the fees they generate) within a state's jurisdiction. But this legislation is profoundly inequitable because it primarily benefits wealthy settlors and those lucky enough to be their beneficiaries, while shifting cost and risk to everyone else.

In the face of such competition, Illinois has fought to retain its trust business by passing legislation that allows settlors to opt out of the perpetuity …

Delay, Politics, And Expertise In Oira Tax Review, Kristin E. Hickman, Bridget C.E. Dooling

Articles

The opening months of the second Trump administration have featured a wide range of changes to federal policy accomplished through presidential  executive orders. Among those changes, a lesser-known shift is the reinstatement of centralized review of tax regulations by the Office of Information of Regulatory Affairs (OIRA).

For many years, most tax regulations were exempt from OIRA review. That changed in the first Trump administration when the Treasury Department (Treasury) and OIRA signed a memorandum of agreement bringing more tax regulations within OIRA’s oversight sphere. In the Biden administration, Treasury and OIRA reversed course, this time clearly and unequivocally exempting …

Fairness Writ Large Or Writ Small In International Criminal Justice, Nancy Combs

FIU Law Review

This article highlights the various, sometimes competing conceptions of fairness in international criminal law.

Beyond The Editorial Analogy: First Amendment Protections For Platform Content Moderation After Moddy V. Netchoice, Alan Rozenshtein, Kyle T. Langvardt

Articles

This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the …

The Problem Of Purpose In Corporate Law, Matthew T. Bodie, Grant M. Hayden

Articles

For the last half century, shareholder primacy has reigned as the dominant definition of corporate purpose, as to both the purpose of individual companies and corporate law more generally. Recently, however, the Business Roundtable, the American Law Institute’s Restatement of the Law: Corporate Governance, and many business and legal academics have developed new answers to explain why we have corporations, and the ends to which their massive economic powers should be directed. This Essay endeavors to reframe the focus of the debate beyond purpose itself into the realm of actual governing power. In order to be meaningful, purpose needs governance. …

Women And Corporate Governance: Time Horizons And Stakeholder Analysis, June R. Carbone

Articles

This Article will build on my earlier work with Naomi Cahn and Nancy Levit to use the fate of women in individual companies to shine new light on the temporal orientations underlying corporate and labor and employment law and provide a basis for a new foundation for a combined approach. This Article will first explain why the shift to shareholder primacy, and the accompanying emphasis on short-term results tied to high stakes bonus pay, disproportionately short-changes female employees, whether in management or in line positions. The Article will maintain that it is not the shift to shareholder primacy in isolation, …