Digital Commons Network^™

Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky

Faculty Scholarship

No abstract provided.

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

Faculty Scholarship

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Organizational Form As Status And Signal, Kimberly D. Krawiec

Faculty Scholarship

In this Article, the author analyzes the reactions of 147 New York City law firms to the 1994 enactment of the New York Limited Liability Partnership statute, which provided New York law firm partners with the first convenient mechanism to limit their personal liability for partnership debts. Using both quantitative and qualitative evidence, she evaluates whether the behavior of New York law firms supports the signaling theory of organizational form - that is, the theory that firms use the partnership form to signal to the marketplace that they provide high quality legal services, due to either superior monitoring or to …

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique Eaglewoman

Faculty Scholarship

This article examines one tribal nation as an example of the many land loss issues facing Tribes at present. Through the example of the Sisseton-Wahpeton Oyate history of treaties, agreements, land cessions, and finally a federal ruling of reservation disestablishment, the policies of the United States regarding Indian lands will be shown. To reestablish the territorial boundaries of the Sisseton-Wahpeton Oyate, federal recognition is necessary in the United States. International law principles from the United Nations, the International Labor Organization, and the Organization of American States may provide legal support for the re-recognition of the reservation boundaries.

A Conversation About Takings And Water Rights, John D. Leshy

Faculty Scholarship

No abstract provided.

Norms And Enforcement: The Case Against Copyright Litigation, Ben Depoorter, Sven Vanneste

Faculty Scholarship

No abstract provided.

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Faculty Scholarship

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

Introduction, Symposium: Who Guards The Guardians?: Monitoring And Enforcement Of Charity Governance, Dana Brakman Reiser, Evelyn E. Brody

Faculty Scholarship

No abstract provided.

Patriotic Dissent, Susan Herman

Faculty Scholarship

No abstract provided.

Private Language, Public Laws: The Central Role Of Legislative Intent In Statutory Interpretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear

Faculty Scholarship

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …

Advertising And Intermediaries In Provision Of Legal Services: Bates In Retrospect And Prospect, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.

In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve …

Is Public Health Paternalism Really Never Justified? A Response To Joel Feinberg, Thaddeus Mason Pope

Faculty Scholarship

n the preeminent scholarly legal treatise on paternalism, The Moral Limits of the Criminal Law: Harm to Self, Joel Feinberg argues that hard paternalism is never justified because it is superfluous; all reasonable restriction of self-regarding conduct can be justified on (more palatable) soft paternalistic grounds.

In this article, I argue that Feinberg's strategy seems to work only because he "stretches" soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg's strained appeals, and argue for honesty and transparency regarding the bases for paternalistic liberty limitation. If the rationale for public health restrictions on …

Can Good Judges Be Good Politician? Judicial Elections From A Virtue Ethics Approach, Marie Failinger

Faculty Scholarship

In this article, the author argues that it is only possible to determine whether judges are likely to be good judges if we understand the practice of judging and the telos of justice toward which its aims, and that elections cannot help voters determine what qualities are necessary in judges and for what reasons. Moreover, I argue that traditional elections require virtues in politicians which are not often found in good (virtuous) judges, making them an unsuitable way of selecting candidates.

Seven Points To Explain Why The Law Ought Not Allow The Elimination Of Fiduciary Duty Within Closely Held Businesses: Cardozo Is Dead; We Have Killed Him., Daniel S. Kleinberger

Faculty Scholarship

Prepared as part of the author's work as co-reporter for the Revised Uniform Limited Liability Company Act, this essay argues against legislation that empowers private agreements to eliminate fiduciary duty within a business organization. The essay considers: (i) the venerable role of fiduciary duty within business organizations and the limited predictive powers of those urging radical reform; (ii) the absence of prescience in contract drafters; (iii) the strict construction function of fiduciary law; (iv) the inevitable and inappropriate pressure that elimination would put on the obligation of good faith and fair dealing; (v) the differences in remedy available for fiduciary …

The Closely Held Business Through The Entity-Aggregate Prism, Daniel S. Kleinberger

Faculty Scholarship

When the law conceptualizes the legal form that houses a closely held business, does it matter whether the law envisages that form as an entity separate from, rather than an aggregate of, the several owners of the business? At one time, this question was at the conceptual core of the law of general partnerships, but the Revised Uniform Partnership Act supposedly put the issue to rest. Moreover, the closely held corporation is emphatically an entity, as is the predominant form of unincorporated organization - the limited liability company. Today, the entity-aggregate question might seem a mere relic of a discarded …

Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn

Faculty Scholarship

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had …

Corporate Responsibility: Ensuring Independent Judgment Of The General Counsel - A Look At Stock Options, Z. Jill Barclift

Faculty Scholarship

Recent corporate scandals and allegations of corporate fraud in public companies have most people asking how things went so wrong. When looking to assess blame for corporate malfeasance, many ask, “Where were the lawyers?” In several high-profile corporate fraud investigations, outside and in-house lawyers were criticized for not doing more to prevent corporate executives from violating the law, and several general counsels were charged with criminal misconduct by state and federal authorities. Why would the general counsel of a public corporation risk his or her career, reputation, and criminal prosecution to assist executives in perpetuating corporate fraud? The answer may …

Lawyers, Justice And The Challenge Of Moral Pluralism, Kate Kruse

Faculty Scholarship

The debate over whether it serves or undermines the interests of justice for lawyers to temper the zeal of their advocacy based on considerations of morality or justice has largely been polarized between two camps: traditionalists and moralists. Traditionalists defend the amoral role of lawyers, arguing that lawyers should remain moral neutral in their representation of clients. Moralists propose alternative social justice lawyering models, which urge lawyers' morally engagement in their choice of clients, their interpretation of law, and their counseling of clients.

This article revisits the debate by recasting the question at its center. Instead of inquiring what a …

Mona Retires, Stacy Caplow

Faculty Scholarship

No abstract provided.

Intellectual Property Rights And Stem Cell Research: Who Owns The Medical Breakthroughs?, Sean O'Connor

Faculty Scholarship

No abstract provided.

Dependence, Identity, And Abortion Politics, Robin Effron

Faculty Scholarship

No abstract provided.

Reconceptualizing Advocacy Ethics, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.

Defending Author-Essentialism, Jeffrey C. Goodman

Faculty Scholarship

Creationism is the view that fictional individuals such as Sherlock Holmes are contingently existing abstracta that come about due to the intentional activities of authors.  Author-essentialism is the stronger thesis that the author responsible for bringing a fictional individual into existence at a time is essential to the existence of that individual.  Takashi Yagisawa has recently attacked this view on the following grounds: author-essentialists rely on an ontological parallelism between fictional individuals and whole works of fiction, but this parallelism fails to obtain.  I here argue that Yagisawa’s grounds are weak.

"Render Unto Caesar", Marie Failinger

Faculty Scholarship

“Render unto Caesar the things that are Caesar’s” is as much a challenge as a command. It is a cryptic call to Christians to consider more thoughtfully what we owe to the state—and as importantly, what we do not—rather than, as we might want to pretend, a clear signal of the boundary between the governances of God’s left and right hands.

Modern Americans in mainstream Christian churches often forget, because we do not feel the heavy hand of the state upon our congregations, our worship, and our activities, that this Biblical challenge is effectively issued to us every day. The …

Technology And Internet Jurisdiction, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.