Digital Commons Network^™

U.S. Jurisdiction Over Conflicts Arising Outside Of The United States: Some Hegemonic Implications, Ugo Mattei, Jeffrey Lena

Faculty Scholarship

No abstract provided.

Rules Of Transnational Civil Procedure, Geoffrey C. Hazard, Michele Taruffo, Rolf Sturner, Antonio Gidi

Faculty Scholarship

No abstract provided.

Introduction To The Principles And Rules Of Transnational Civil Procedure, Geoffrey C. Hazard, Michele Taruffo, Rolf Sturner, Antonio Gidi

Faculty Scholarship

No abstract provided.

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …

The Ali And The Ucc, Lance Liebman

Faculty Scholarship

I will speak at less length than some of my colleagues here for two reasons. One is, my knowledge of this subject is extremely limited. I've taught for thirty years, but in areas of law that have nothing to do with these. And, it is only on coming to the American Law Institute job a year ago, that I find myself learning about NCCUSL, learning about all these issues, and learning in substantive ways about commercial law. Suddenly, out of the repressed memory, have come back my experiences in Professor Brancher's course in commercial law. I didn't learn it then, …

Lawyers As America's Governing Class: The Formation And Dissolution Of The Original Understanding Of The American Lawyer's Role, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee

Faculty Scholarship

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states …

E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg

Faculty Scholarship

For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …

Crosby And The "One-Voice" Myth In U.S. Foreign Relations, Sarah H. Cleveland

Faculty Scholarship

In Crosby v. National Foreign Trade Council, the Supreme Court invalidated a Massachusetts government procurement statute that barred state entities from doing business with companies that did business in Burma. The plaintiffs, an organization of private companies with foreign operations, challenged the law on constitutional and statutory preemption grounds, arguing that it improperly conflicted with federal foreign relations authority. The Supreme Court limited its holding to implied statutory preemption, finding that the Massachusetts provision improperly compromised the President's ability "to speak for the Nation with one voice." Crosby thus joined a long line of decisions in which the Supreme …

Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib

Faculty Scholarship

Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our …

The Rise Of Dispersed Ownership: The Roles Of Law And The State In The Separation Of Ownership And Control, John C. Coffee Jr.

Faculty Scholarship

Recent scholarship on comparative corporate governance has produced a puzzle. While Berle and Means had assumed that all large public corporations would mature to an end-stage capital structure characterized by the separation of ownership and control, the contemporary empirical evidence is decidedly to the contrary. Instead of convergence toward a single capital structure, the twentieth century saw the polarization of corporate structure between two rival systems of corporate governance:

1. A Dispersed Ownership System, characterized by strong securities markets, rigorous disclosure standards, and high market transparency, in which the market for corporate control constitutes the ultimate disciplinary mechanism; and
2. A …

The Technologies Of Property Rights: Choice Among Alternative Solutions To Tragedies Of The Commons, Bruce Yandle, Andrew P. Morriss

Faculty Scholarship

Garrett Hardin's classic description of the tragedy of the commons tells us that all environmental problems require a property rights solution. The property solution or rule may call for the definition and enforcement of common, public, or private property rights, but any escape from the tragedy requires some rationing mechanism that allocates a form of property rights to some entity. These solutions fall into one of two broad traditions within economics: the Pigouvian, or regulatory tradition, and the Coasean, or market-based tradition. Any proposal for action in either tradition implies some definition of property rights. The difference lies in the …

The Right To Silence Helps The Innocent: A Game-Theoretic Analysis Of The Fifth Amendment Privilege, Alex Stein, Daniel J. Seidmann

Faculty Scholarship

No abstract provided.

Soul For Sale: An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements, Susan Saab Fortney

Faculty Scholarship

This article analyzes the results of an empirical study to illustrate the effect of billable hour requirements on associate satisfaction and law firm culture. Part I briefly describes the survey design and the general profile of the survey respondents. Part II discusses current billing practices and pressures analyzing the study results related to billing expectations and guidance as well as firm culture and work alternatives. Using findings from the study, Part III considers the detrimental micro and macro effects of increasing billable hour expectations. Part IV proposes various steps and measures that can be taken to address the negative consequences …

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

Book Review - Reviewing William D. Popkin, Statutes In Court: The History And Theory Of Statutory Interpretation (1999), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

In his well-written and well-argued book, William D. Popkin delivers on the promise denoted in his title. Part I of the book details the Anglo-American history of statutory interpretation. Part 11 begins by surveying the most important contemporary theories in the field of statutory interpretation. Part 11 ends with the author's rejection of these theories and the exposition of his own theory, which he calls "ordinary judging." Popkin argues that his is "the best perspective for understanding the discretionary judicial role [in interpreting statutes] . . . whereby judges indulge a modest competence to contribute to good …

Boomerang Data Suggest A Purely Baryonic Universe, Stacy S. Mcgaugh

Faculty Scholarship

The amplitudes of peaks in the angular power spectrum of anisotropies in the microwave background radiation depend on the mass content of the universe. The second peak should be prominent when cold dark matter is dominant but is depressed when baryons dominate. Recent microwave background data are consistent with a purely baryonic universe with Ωm = Ωb and ΩA ∼ 1.

Global Finance And The International Monetary Fund's Neoliberal Agenda: The Threat To The Employment, Ethnic Identity, And Cultural Pluralism Of Latina/O Communities, Timothy A. Canova

Faculty Scholarship

This Article places recent Lat-Crit scholarship in an institutional and inter-disciplinary context. It serves not just as an indictment of the International Monetary Fund (IMF) agenda of structural adjustment and liberalization. It also questions the positioning of Lat-Crit scholars to remain silent or complicit with the IMF's agenda. Canova provides a counter-narrative that is rich in historical revisionism, heterodox economics, and sociological conclusions. His recognition of the global unemployment crisis - made largely invisible by orthodox economics and flawed government measurements - is combined with existential insights about the nature of underemployment on the formation of individual identity and cultural …

Latinas And Religion: Subordination Or State Of Grace?, Laura M. Padilla

Faculty Scholarship

This Essay addresses how religion simultaneously subordinates Latinas while serving as a source of strength. More specifically, it focuses on Catholicism and how the same church and religion have a fragmented and varied impact on Latinas, particularly Mexican-Americans, with whom I am most familiar.

The Attorney-Client Privilege: Practical Military Applications Of A Professional Core Value, Joshua E. Kastenberg, Norman K. Thompson

Faculty Scholarship

This article examines the historical development of the attorney-client privilege and then explores the privilege generally before tackling some specific areas where the privilege commonly arises in military practice. We explore important aspects of the privilege from three different perspectives: (1) a prosecution perspective-saving court-martial cases involving alleged compromise of attorney-client privileged material by trial counsel and/or investigators, (2) a defense perspective-using the privilege to protect information about the whereabouts of a client and the contents of a defense counsel's appointment schedule, and, (3) a general military practice perspective-the potential conflicts of interest which may arise when the privilege is …

Children In Poverty: In Search Of State And Federal Constitutional Protections In The Wake Of Welfare Reforms, April Land

Faculty Scholarship

The elimination of the federal entitlement to welfare and the shifting of essential policy making to states raises serious questions about the procedural due process rights of people in poverty. It also changes the focus of the legal battleground for welfare families, bringing important state constitutional issues into focus across the nation. Overall, the Article emphasizes that in exploring the potential constitutional protections for families in poverty, it will be important to focus on the detrimental effects that welfare reforms have on children. By emphasizing the impact that welfare cuts have on children, it may be possible to provide a …

The Baryonic Tully-Fisher Relation, Stacy S. Mcgaugh

Faculty Scholarship

We explore the Tully-Fisher relation over five decades in stellar mass in galaxies with circular velocities ranging over 30 ≲ Vc ≲ 300 km s-1. We find a clear break in the optical Tully-Fisher relation: field galaxies with Vc ≲ 90 km s-1 fall below the relation defined by brighter galaxies. These faint galaxies, however, are very rich in gas; adding in the gas mass and plotting the baryonic disk mass Md = M* + Mgas in place of luminosity restores the single linear relation. The Tully-Fisher relation thus appears fundamentally to be a relation between rotation velocity and total …

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Scholarship

Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law of Nations." Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, …

Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose

Faculty Scholarship

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations …

The Disorders Of Unrestricted Capital Mobility, And The Limits Of The Orthodox Imagination, Timothy A. Canova

Faculty Scholarship

This book review provides a critique of Robert Solomon's' Money on the Move: The Revolution in International Finance since 1980'. According to the reviewer, Solomon has written a highly descriptive account of some of the major developments in global financial markets over the past two decades. His impressive compilation of events is couched in an objective, value-neutral narrative, thereby suggesting that the tide of orthodox policy reforms is as inevitable as the sun rising. But lurking just beneath the surface are the usual neoclassical assumptions that one might expect of a former chief international economist of the Federal Reserve Board: …

Prologomenon To An Empirical Restatement Of Conflicts, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

You Should Have Known Better, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Evolving Indigenous Law: Navajo Marriage--Cultural Traditions And Modern Challenges, Antoinette M. Sedillo Lopez

Faculty Scholarship

Tribal regulation of marriage is an example of tribal government and tribal court using the legal system to reclaim traditional values and to resist (at least in part) the dominant values imposed on the Navajo Nation. Identity as Dine (the Navajos term to refer to themselves) is based on clan affiliations, which are determined by blood and marriage. Marriage has been an important and sacred institution in Navajo tradition. The Navajo Supreme Court and the Tribal Council have attempted to find a substantive law of marriage that respects traditional Navajo culture while meeting contemporary needs of Navajo people. The Navajo …

Silence And Silencing: Their Centripetal And Centrifugal Forces In Cultural Expression, Pedagogy And Legal Discourse, Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory and LatCrit Theory in its analysis, methodologies, and purpose. I seek to disrupt silences around race and to provide the knowledge and skills for effective work on racial equity and justice. Language and voice have been subjects of great interest to scholars working in the areas of Critical Race Theory and Latina/o Critical Legal Theory. Silence, a counterpart of voice, has not, however, been well theorized. This Article is an invitation to attend to silence and silencing. The first part of the Article argues that one's use of silence is an aspect of communication …

Tularosa And The Dismantling Of New Mexico Community Ditches, G. Emlen Hall

Faculty Scholarship

In the last quarter of the nineteenth century and the first quarter of the twentieth, contested claims to the water of a small stream in south-central New Mexico produced a storm of legal activity. The maelstrom arose out of the tangled complications surrounding the development of non-Indian water rights to the Tularosa Creek. The creek was a small spring-fed stream that headed on the Mescalero Apache Indian homelands in the Sacramento Mountains. From its beginnings, the creek ran west, first through a narrow canyon and then out onto a broad plain before petering out in the porous White Sands. Between …