Digital Commons Network^™

Towards The Declassification Of S&P 500 Boards, Lucian A. Bebchuk, Scott Hirst, June Rhee

Faculty Scholarship

This report provides an overview and analysis of the work that the Shareholder Rights Project (SRP) undertook on behalf of a number of institutional investors during 2012 and 2013, the SRP’s first two years of operations. During 2012 and 2013, the SRP worked on behalf of eight SRP-represented investors on board declassification proposals submitted for a vote at the 2012 and/or 2013 annual meetings of 122 S&P 500 and Fortune 500 companies, and this work has produced substantial results:
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/="/">100 Negotiated Outcomes: Negotiated outcomes involving a commitment to board declassification were reached with 100 S&P 500 and Fortune …

Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer's decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the negligence test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the negligence test, in the presence of intervening causation, is to induce actors to take into account the distribution of the …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David Gray, Danielle K. Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

Cyberfinancing For Economic Justice, Lisa T. Alexander

Faculty Scholarship

This Article argues for the socially optimal regulation of online peer-to-peer (P2P) lending and crowdfunding to advance economic justice in the United States. Peer-to-peer lending websites, such as Prosper. com orKiva.org, facilitate lending transactions between individuals online with-out the involvement of a traditional bank or microfinance institution. Crowdfunding websites, such as Kickstarter. com, enable individuals to obtain financing from large numbers of contributors at once through an open online request for funds. These web-based transactions, and the intermediary organizations that facilitate them, constitute emerging cyberfinancing markets. These markets connect many individuals at once, across class, race, ethnicity, nationality, space, and …

The New Originalist Manifesto, James E. Fleming

Faculty Scholarship

Lawrence B. Solum and Robert W. Bennett's excellent book, Constitutional Originalism: A Debate, calls to mind a famous book in political philosophy, J.J.C. Smart and Bernard Williams's Utilitarianism: For and Against.' Both works pair two spirited yet fair-minded scholars in a constructive debate between two competing views prevalent in their fields. Originalism has a reasonable, programmatic, and inclusive proponent in Solum, and living constitutionalism has a capable, pragmatic, and effective champion in Bennett.

Black Kinship Circles In The 21st Century: Survey Of Recent Child Welfare Reforms And How It Impacts Black Kinship Care Families, Sonia M. Gipson Rankin

Faculty Scholarship

The Black American community has been celebrated for the historical success of kinship care. With an eye on the long legal history of attempts to address kinship care families, the federal government created an exploratory program to concentrate on solving the three goals of child welfare. Title IV-E Flexible Waiver program of the Social Security Act implemented in 2005 was designed to address the permanency, wellbeing, and safety of children with the goal of decreasing the number of children in out-of-home care.

• This paper argues Title IV-E Flexible Waivers should be used to address the continued health and economic needs …

Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Roe v. Wade grounds constitutional protections for women’s decision wheth­er to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equal­ity arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …

Dismantling Large Bank Holding Companies For Their Own Good And For The Good Of The Country, Tamar Frankel

Faculty Scholarship

This paper suggests that bank holding companies are in fact “financial malls.” I demonstrates the problems that they pose for the financial system, not only by size but by inefficient and inappropriate concentration. The article suggests restructuring of bank holding companies by introducing more market discipline to the various “shops” in the mall as well as concentrating services for the purpose of efficiency. The Article concludes with suggestion that rather than imposing a restructure by law it may perhaps be possible to entice managements that look to the long-term future to follow a restructure voluntarily.

Threats Demand Our Action, Margaret E. Montoya

Faculty Scholarship

Those of us who identify as progressive see this as a time when speaking up and engaging on public policy is our duty. I am writing to express my deep concern and dismay about the state of the federal government under Donald Trump. Like others, I have marched, donated, and joined Wednesday’s International Women’s Day protests against the administration of Donald Trump.

Health-Related Resource Use And Costs In Elderly Adults With And Without Mild Cognitive Impairment, Carolyn Zhu, Peter J. Whitehouse, Marian B. Patterson

Faculty Scholarship

Objectives To assess differences in resource use and cost between older adults with and without mild cognitive impairment (MCI) over time. Design Multicenter, longitudinal study. Setting Sixty-eight Alzheimer's Disease Cooperative Study (ADCS) sites in the United States. Participants Two hundred fifty-nine individuals diagnosed with MCI and 107 cognitively normal elderly adults followed annually for 3 years. Measurements The Resource Use Instrument (RUI) was used to capture medical and nonmedical care use. Generalized linear latent and mixed models were used to estimate differences in resource use and costs in older adults with and without MCI after controlling for clinical and demographic …

Electrolyte Dependence Of Particle Motion Near An Electrode During Ac Polarization, Christopher L. Wirth

Faculty Scholarship

The phase angle between the imposed ac electric field and the oscillations in particle height is the key parameter governing the sign of interparticle force during two-dimensional directed assembly. The phase angle depends on a number of experimental parameters, including the frequency of the electric field and dispersing electrolytes. The origin of electrolyte dependence in this phase angle has been a mystery for a decade. Electrolyte dependence arises from polarization of the particle's diffuse layer, which affects the dynamic electrophoretic mobility of the particle. A full description of the magnitude and phase angle of the dynamic electrophoretic mobility was incorporated …

Andromeda Dwarfs In Light Of Modified Newtonian Dynamics, Stacy S. Mcgaugh

Faculty Scholarship

We compare the recently published velocity dispersions for 17 Andromeda dwarf spheroidals with estimates of the modified Newtonian dynamics predictions, based on the luminosities of these dwarfs, with reasonable stellar mass-to-light values and no dark matter. We find that the two are consistent within the uncertainties. We further predict the velocity dispersions of another 10 dwarfs for which only photometric data are currently available. © 2013. The American Astronomical Society. All rights reserved..

Positive' Gentrification, Social Control And The 'Right-To-The-City' In Mixed-Income Communities: Uses And Expectations Of Space And Place, Mark L. Joseph

Faculty Scholarship

Public policies supporting market-oriented strategies to develop mixed-income communities have become ascendant in the United States and a number of other countries around the world. Although framed as addressing both market goals of revitalization and social goals of poverty deconcentration and inclusion, these efforts at ‘positive gentrifcation’ also generate a set of fundamental tensions — between integration and exclusion, use value and exchange value, appropriation and control, poverty and development — that play out in particular concrete ways on the ground. Drawing on social control theory and the ‘right to the city’ framework of Henri Lefebvre, this article interrogates these …

Cleaning Up The Financial Crisis Of 2008: Prosecutorial Discretion Or Prosecutorial Abdication?, David J. Reiss, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Outspoken: Social Media And The Modern College Athlete, Meg Penrose

Faculty Scholarship

The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes' speech are not only …

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

The Potential Cost And Value Of Erm, Michelle M. Harner

Faculty Scholarship

The concept of enterprise risk managment (ERM) as a holistic approach to managing a company's risk profile has tremendous appeal. However, companies are frequently skeptical about its value and whether the results will justify the cost, effort, and challenges of implementing a meaningful ERM process. This report considers some of those concerns and highlights the governance, compliance, and cultural value of ERM.

When Pregnancy Is An Injury: Rape, Law, And Culture, Khiara M. Bridges

Faculty Scholarship

This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion …

A Longitudinal Examination Of The Relationship Between Sexual Sensation Seeking And Sti-Related Risk Factors Among African American Females, Dexter R. Voisin

Faculty Scholarship

Sexual sensation seeking has been correlated with STI-related risk factors in numerous cross sectional studies. However, no current studies have examined whether sexual sensation seeking is longitudinally related to a broad spectrum of STI-related factors such as consistent condom use, number of sexual partners, frequency of partner sexual communication, self-efficacy to refuse sex, and fear of condom negotiation. We explored these relationships over a 12-month period among a sample of 715 African American females attending three STI clinics in Georgia that were recruited into a larger randomized clinic intervention study. Utilizing A-CASI technology to assess all self-reported measures and employing …

Crime, Survelliance, And Communities, I. Bennett Capers

Faculty Scholarship

No abstract provided.

The New Public Housing Stigma In Mixed-Income Development, Mark L. Joseph

Faculty Scholarship

Public housing residents have long experienced stigma as members of an urban “underclass.” By deconcentrating poverty and integrating public housing residents into mixed-income communities where their residences are indistinguishable from those of their higher-income neighbors, some policymakers hope that the stigma these residents have experienced will be reduced or eliminated. Through interviews with relocated public housing residents at three mixed-income developments being built as part of Chicago’s Plan for Transformation, we fnd that this is not the case. While stigma associated with living in public housing has subsided, residents report that their experience of stigma has intensifed in new ways. …

Quantitative Model For Measuring Line-Drawing Inequity, Bradley T. Borden

Faculty Scholarship

No abstract provided.

"Moving The Ball Forward" In Consumer And Employment Dispute Resolution: What Can Planning, Talking, Listening And Breaking Bread Together Accomplish?, Nancy A. Welsh, David B. Lipsky

Faculty Scholarship

Article Extract:

Mandatory pre-dispute arbitration has been a divisive issue for many years, particularly since the Supreme Court began enforcing the arbitration clauses that businesses and employers impose on consumers and employees, respectively, in contracts of adhesion. In 2009, the Dispute Resolution Section’s Council proposed to weigh in on this issue through the vehicle of an ABA House of Delegates resolution. The compromise position developed by the Section, expressing support for pre-dispute mandatory arbitration clauses provided they offer a meaningful opt-out, generated such a firestorm of opposition from both pro-arbitration and anti-arbitration advocates that the Council ultimately chose to abstain …

Foreground Principles, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Faculty Scholarship

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Corporate Strategies, First Sale Rules, And Copyright Misuse: Waiting For Answers From Kirstsaeng V. Wiley And Omega V. Costco (Ii), Irene Calboli

Faculty Scholarship

In this Essay, I continue my previous analysis of the first sale rule (or principle of exhaustion) in intellectual property law in the context of international trade. In particular, I highlight the differences between the first sale rules in trademark and copyright law--in particular, international first sale in trademark law and national first sale (at least to date) in copyright law--and criticize the corporate trend to invoke copyright protection for incidental product features of otherwise functional and uncopyrightable products in order to restrict the importation of gray market (genuine) products into the United States. During the past decade, corporations have …

Making A Deal In Criminal Law, Cynthia Alkon

Faculty Scholarship

Professor Alkon describes her experiences using plea bargaining exercises in her first year, first semester, criminal law class.

Tax Court Find Stars Transaction Lacks Economic Substance, Robert D. Probasco, Lee S. Meyercord

Faculty Scholarship

In Bank of New York Mellon Corp. v. Commissioner, the Tax Court found that a structured trust advantaged repackaged securities (“STARS”) transaction entered into by BNY Mellon lacked economic substance, and disallowed foreign tax credits of $199 million as well as transactional expenses of $8 million. BNY Mellon is the first test case to emerge from the IRS’s attempts to disallow tax benefits to several financial institutions that participated in the STARS transaction.

The STARS transaction is one of a number of different transactions that the IRS refers to as “foreign tax credit generators.” These transactions generally rely on inconsistent …

Enough About The Constitution: How States Can Regulate Health Insurance Under The Aca, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

Last term, the United States Supreme Court upheld the constitutionality of the Affordable Care Act in a landmark decision. It is a forceful reminder that America’s oldest question — how power should be shared between federal and state sovereigns — retains powerful political salience. Critics have reflexively attacked the decision as an assault on states’ rights, while supporters have celebrated the result. Regrettably, insufficient attention has been paid to how, in actuality, health care regulatory authority has been and will be divided between federal and state governments. In this Article, we fill that gap. To do so, we apply “federalism-in-fact,” …

Thoughts On The Latest Battles Over Erisa's Remedies, Brendan S. Maher

Faculty Scholarship

It is extraordinarily unlikely that the drafters of ERISA foresaw the effect the statute would have on federal courts and American economic life. It was originally conceived as a "pension bill of rights" designed to ensure that workers received the fixed monthly pension payment (based on tenure and average salary) that they had been promised. It grew, however, into the most litigated statute in the United States Code; to govern increasingly popular individual retirement savings accounts, e.g., 401(k) accounts;4 to be the central statute regulating employment based health insurance, which covers over one hundred and sixty million people; to be …