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The Missing Monitor In Corporate Governance: The Directors' & Officers' Liability Insurer, Tom Baker, Sean J. Griffith Jan 2006

The Missing Monitor In Corporate Governance: The Directors' & Officers' Liability Insurer, Tom Baker, Sean J. Griffith

Faculty Scholarship

This article reports the results of empirical research on the monitoring role of directors' and officers' liability insurance (D&O insurance) companies in American corporate governance. Economic theory provides three reasons to expect D&O insurers to serve as corporate governance monitors: first, monitoring provides insurers with a way to manage moral hazard; second, monitoring provides benefits to shareholders who might not otherwise need the risk distribution that D&O insurance provides; and third, the "bonding" provided by risk distribution gives insurers a comparative advantage in monitoring. Nevertheless, we find that D&O insurers neither monitor corporate governance during the life of the insurance …

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Can Direct Democracy Be Made Deliberative?, Ethan J. Leib Jan 2006

Can Direct Democracy Be Made Deliberative?, Ethan J. Leib

Faculty Scholarship

Every election cycle a great number of citizens take to the polls to vote on public policy matters directly. Direct democracy has problems. And an account of deliberative democracy—far from being a source to critique direct democracy—might provide a solution. I have three goals here. First, I hope to identify some problems with the mechanisms of direct democracy that most states and many cities throughout the country employ: the initiative and the referendum. Next, I will offer a potential solution to these institutional problems using aspects of the theory of deliberative democracy, a theory often marshaled to undermine direct democracy. …

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Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels Jan 2006

Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels

Faculty Scholarship

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, …

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Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler Jan 2006

Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler

Faculty Scholarship

In this article, I argue that from 1992 (when the Lucas case was decided) and for almost ten years thereafter, what I call the "Scalian view" of property and justice dominated Supreme Court jurisprudence. Under this vision, property provides a concrete, objectively knowable, and immutable legal barrier which marks the line between protected individual interests and the exercise of collective power. If government transgresses this line, the individual is almost always deemed to have been wronged. And compensation is required, as a matter of "justice," under the Takings Clause. I argue that with the Court's decisions in Palazzolo and Tahoe …

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Whistle Blowing: An Economic Analysis Of The False Claims Act, Ben Depoorter, Jef De Mot Jan 2006

Whistle Blowing: An Economic Analysis Of The False Claims Act, Ben Depoorter, Jef De Mot

Faculty Scholarship

No abstract provided.

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Mad Women And Desperate Girls: Infanticide And Child Murder In Law And Myth, Elizabeth Rapaport Jan 2006

Mad Women And Desperate Girls: Infanticide And Child Murder In Law And Myth, Elizabeth Rapaport

Faculty Scholarship

This article first offers a comparison between the stereotype dominated understanding of infanticide and child homicide in the United States and the statistical landscape it obscures. It then turns to the history of the crime of infanticide, a history which confirms that a fascination with deviant women as long dominated the story of infanticide. The article concludes with the exploration of the "Good Mother Defense." That exploration reveals the extent to which the fate of a woman tried for child homicide hinges on whether the jury sees her as a good mother, rather than on the prosecutors' ability to prove …

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Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz Jan 2006

Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz

Faculty Scholarship

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …

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Keep Your Money: Let The West Pay For Its Own Water Projects, Denise D. Fort Jan 2006

Keep Your Money: Let The West Pay For Its Own Water Projects, Denise D. Fort

Faculty Scholarship

The question posed here is what role the federal government should play in responding to the western water crisis, in light of the changes in the social and political landscape that have occurred in the last decade. My thesis is that solutions to water needs that are funded locally are more likely to be sustainable than those produced through national appropriations. My thinking is affected by the work I did on a Presidential commission that recommended sustainability be the cornerstone of western water policy.

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Denial, Antoinette M. Sedillo Lopez Jan 2006

Denial, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

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The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding Jan 2006

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Faculty Scholarship

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well. Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

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Deflating The Deference Myth: National Interests Vs. State Authority Under Federal Laws Affecting Water Use, Reed D. Benson Jan 2006

Deflating The Deference Myth: National Interests Vs. State Authority Under Federal Laws Affecting Water Use, Reed D. Benson

Faculty Scholarship

This Article seeks to separate the myth from the reality of federal deference to state water allocation authority. Section I briefly addresses background principles of state water law and federal constitutional law, and Section II traces the early history of deference prior to 1910. Section III analyzes three federal statutory schemes and Supreme Court cases applying them, suggests that each represents a different level of federal deference, and distills a few principles for analyzing deference under federal statutes. Section IV addresses deference issues arising in the context of the CWA and the ESA, applying the principles identified in the previous …

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The Immorality And Inefficiency Of An Efficient Breach, Dawinder S. Sidhu Jan 2006

The Immorality And Inefficiency Of An Efficient Breach, Dawinder S. Sidhu

Faculty Scholarship

This Article attempts to analyze a concept in contract law known as the doctrine of efficient breach, which “compels [or at least encourages or invites] a party to a contract to breach if they can compensate the other party and remain better off than if they had fully performed the contract.”2 This doctrine appears to encourage immoral conduct, namely the breach of a contract. However, in the name of economic efficiency, wealth maximization, and social wealth, several prominent legal scholars, including Judge Richard A. Posner, the “leader of the school of Law and Economics movement,”3 have argued that an efficient …

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Adequate Progress, Or Rivers Left Behind? Developments In Colorado And Wyoming Instream Flow Laws Since 2000, Reed D. Benson Jan 2006

Adequate Progress, Or Rivers Left Behind? Developments In Colorado And Wyoming Instream Flow Laws Since 2000, Reed D. Benson

Faculty Scholarship

Colorado and Wyoming have much in common in regard to water supply and water use, and both states have followed the western states' traditional approach in their instream flow laws. This traditional approach, however, has serious practical shortcomings in restoring and protecting instream flows. This Article asks whether Colorado and Wyoming have made “adequate progress” since 2000 in addressing these shortcomings in their instream flow laws. For one of these states, the answer is clear Wyoming has made no progress on its instream flow laws in recent years. Colorado, by contrast, has clearly made progress in strengthening its laws-especially as …

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American Indians, Crime, And The Law, Kevin Washburn Jan 2006

American Indians, Crime, And The Law, Kevin Washburn

Faculty Scholarship

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

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Federal Criminal Law And Tribal Self-Determination, Kevin Washburn Jan 2006

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

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Tribal Self-Determination At The Crossroads, Kevin Washburn Jan 2006

Tribal Self-Determination At The Crossroads, Kevin Washburn

Faculty Scholarship

The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …

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Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick Jan 2006

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.

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Defending The Future Voices Of Critical Race Feminism, Margaret E. Montoya Jan 2006

Defending The Future Voices Of Critical Race Feminism, Margaret E. Montoya

Faculty Scholarship

No abstract provided.

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A Few Ironies Of Western Water Law, Reed D. Benson Jan 2006

A Few Ironies Of Western Water Law, Reed D. Benson

Faculty Scholarship

We have a truly outstanding panel of speakers this morning to discuss issues and history relating to water resources in the American West. Water, of course, has always been scarce out here. Some nineteenth century maps of the United States had the words "Great American Desert" written broadly across the West, and that characterization reflected how many people viewed the West in that era. The story goes that President Grant sent a cabinet member to the West with orders to report back on "what it is they need out there." The secretary dutifully wrote back saying, "All this place needs …

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The Ethical Health Lawyer: When Doing The Right Thing Means Breaking The Law - What Is The Role Of The Health Lawyer?, Robert L. Schwartz Jan 2006

The Ethical Health Lawyer: When Doing The Right Thing Means Breaking The Law - What Is The Role Of The Health Lawyer?, Robert L. Schwartz

Faculty Scholarship

No abstract provided.

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Latcrit At Ten Years, Margaret E. Montoya Jan 2006

Latcrit At Ten Years, Margaret E. Montoya

Faculty Scholarship

No abstract provided.

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Practicing What We Preach: Humane Treatment For Detainees In The War On Terror, Jennifer Moore Jan 2006

Practicing What We Preach: Humane Treatment For Detainees In The War On Terror, Jennifer Moore

Faculty Scholarship

This article sets forth both principled and pragmatic arguments for the fair and humane treatment of all individuals detained in the war on terror derived from both U.S. and international law. Section II explores the human dimension of the "war on terror." Section IIA critiques the use of the metaphor of war to characterize counter-terrorism policy. Section IIB examines the experiences of several individuals apprehended by the United States on suspicion of involvement in terrorism, including the response of U.S. courts to their detention without charge as "unlawful combatants." Section III offers possible explanations for the phenomenon by which the …

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Newfound Religion: Mothers, God, And Infanticide, Susan Ayres Jan 2006

Newfound Religion: Mothers, God, And Infanticide, Susan Ayres

Faculty Scholarship

This essay focuses on cultural constructions of infanticide and psychosis, especially cases in which the mother heard delusional commands to kill her children. Part I examines the background of the Yates, Laney, and Diaz cases. Part II explores whether these mothers can be seen paradoxically as feminist subjects of empowerment rather than as victims. This essay argues that psychotic mothers have been disempowered and silenced, so their acts cannot be seen as subversive feminist gestures. Part III, however, arguest that the legal trials of Laney and Diaz demonstrate a possible subversion through trial strategy. These two trials more fully told …

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Capital Requirements In United States Corporation Law, Richard A. Booth Marbury Research Professor Of Law Dec 2005

Capital Requirements In United States Corporation Law, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

This paper focuses on corporation law in the United States as it relates to capital contributions and capital maintenance. In other words, the paper addresses the provisions of corporation law relating to (1) the obligation of investors to contribute to the corporation a specified amount of capital and (2) the obligation of the corporation to maintain a specified amount of capital (and not to pay it back to the stockholders in the form of dividends or payments to repurchase or redeem shares). Traditionally, the amount of capital that must be contributed to and maintained by a corporation is called the …

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Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra Lekha Sriram Dec 2005

Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra Lekha Sriram

Faculty Scholarship

It is often argued that the increase in agreements, specialized courts, and litigation protecting human rights or responding to past abuses of human rights has begun to erode sovereignty. Contrary to traditional principles of non-interference in internal affairs, it is argued, genuine protection of human rights involves an invasion of the sovereign preserve of the state. While many examples might be adduced in support of this claim, ranging from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda to the European Court of Human Rights, this article examines two types of transnational procedures: civil accountability through the use …

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Human-Centric International Law: A Model And A Search For Empirical Indicators, John King Gamble, Charlotte Ku, Chris Strayer Dec 2005

Human-Centric International Law: A Model And A Search For Empirical Indicators, John King Gamble, Charlotte Ku, Chris Strayer

Faculty Scholarship

This Article is the result of the authors' application of an explicit model of the evolving international legal situation and an empirical test using multilateral treaties. The authors examine all the multilateral treaties signed over the last 350 years, about 6000 treaties, and discuss the "humanization" of international law.

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The Compression Of Dark Matter Halos By Baryonic Infall, Stacy S. Mcgaugh Nov 2005

The Compression Of Dark Matter Halos By Baryonic Infall, Stacy S. Mcgaugh

Faculty Scholarship

The initial radial density profiles of dark matter halos are laid down by gravitational collapse in hierarchical structure formation scenarios and are subject to further compression as baryons cool and settle to the halo centers. Here we describe an explicit implementation of the algorithm, originally developed by Young, to calculate changes to the density profile as the result of adiabatic infall in a spherical halo model. Halos with random motion are more resistant to compression than are those in which random motions are neglected, which is a key weakness of the simple method widely employed. Young's algorithm results in density …

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The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin Nov 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

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A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin Nov 2005

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

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The Baryonic Tully-Fisher Relation Of Galaxies With Extended Rotation Curves And The Stellar Mass Of Rotating Galaxies, Stacy S. Mcgaugh Oct 2005

The Baryonic Tully-Fisher Relation Of Galaxies With Extended Rotation Curves And The Stellar Mass Of Rotating Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

I investigate the baryonic Tully-Fisher relation for a sample of galaxies with extended 21 cm rotation curves spanning the range 20 km s-1 ≲ Vf ≤ 300 km s-1. A variety of scalings of the stellar mass-to-light ratio Υ* are considered. For each prescription for Υ*, I give fits of the form Md = AVfx. Presumably, the prescription that comes closest to the correct value will minimize the scatter in the relation. The fit with minimum scatter has A = 50 M⊙ km-4 s4 and x = 4. This relation holds over five decades in mass. Galaxy color, stellar fraction, …

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